Johnson v. Governor of the State of Florida, 405 F.3d 1214 (11th Cir. 04/12/2005)

[1] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT


[2] No. 02-14469


[3] 405 F.3d 1214, 2005


[4] April 12, 2005


[5] THOMAS JOHNSON, DERRICK ANDRE THOMAS, ERIC ROBINSON, ADAM HERNANDEZ, KATHRYN WILLIAMS-CARPENTER, JAU'DOHN HICKS, JOHN HANES, IN THEIR OWN RIGHT AND AS REPRESENTATIVES OF ALL EX-FELON CITIZENS OF FLORIDA, PLAINTIFFS-APPELLANTS, OMALI YESHITELA, PLAINTIFF,
v.
GOVERNOR OF THE STATE OF FLORIDA, JEB BUSH, SECRETARY OF THE STATE OF FLORIDA, KATHERINE HARRIS, CHARLIE CRIST, ROBERT MILLIGAN, WILLIAM NELSON, ROBERT CRAWFORD, THOMAS GALLAGHER, IN THEIR ROLES AS MEMBERS OF THE CLEMENCY BOARD OF FLORIDA, BEVERLY HILL, ALACHUA COUNTY ELECTION SUPERVISOR, ET AL., DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 00-03542-CV-JLK


[7] The opinion of the court was delivered by: Kravitch, Circuit Judge


[8] [PUBLISH]


[9] Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, WILSON, PRYOR, and KRAVITCH, Circuit Judges.*fn1


[10] I. Introduction


[11] This case involves a Fourteenth Amendment Equal Protection Clause challenge and a Section 2 Voting Rights Act ("VRA") challenge to Florida's felon disenfranchisement law which provides that "[n]o person convicted of a felony...shall be qualified to vote or hold office until restoration of civil rights or removal of disability."*fn2 Fla. Const. art. VI, § 4 (1968). The plaintiffs filed this class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the state's felon disenfranchisement law.*fn3 The defendants are members of Florida's Clemency Board.*fn4


[12] II. Procedural History and Standard of Review


[13] After cross motions for summary judgment, the district court granted summary judgment in favor of the defendants on all claims. A divided panel of this court reversed and remanded on both the Equal Protection and VRA claims. Johnson v. Governor of State of Florida, 353 F.3d 1287 (11th Cir. 2003), vacated 377 F.3d 1163. This court vacated the panel opinion and granted a rehearing en banc. Johnson, 377 F.3d at 1163-64. We now consider whether the district court erred in granting summary judgment in favor of the defendants on the plaintiffs' claims under the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.


[14] We review a district court's grant of summary judgment de novo, "viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party." Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).


[15] III. The Equal Protection Claim


[16] The plaintiffs argue that Florida's felon disenfranchisement law violates the Equal Protection Clause, which prohibits a state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The plaintiffs contend that racial animus motivated the adoption of Florida's criminal disenfranchisement provision in 1868 and this animus remains legally operative today, notwithstanding the fact that Florida altered and reenacted the provision in 1968.


[17] A state's decision to permanently disenfranchise convicted felons does not, in itself, constitute an Equal Protection violation. Richardson v. Ramirez, 418 U.S. 24, 53-55 (1974). The Supreme Court made this clear in Richardson, where it rejected a non-racial equal protection clause challenge to California's felon disenfranchisement law. 418 U.S. at 56. In doing so, the Court relied on Section 2 of the Fourteenth Amendment, holding that it expressly permits states to disenfranchise convicted felons.*fn5 The Court was persuaded that:


[18] [T]hose who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment.


[19] Id. at 43. Of course, the Equal Protection Clause prohibits a state from using a facially neutral law to intentionally discriminate on the basis of race. Washington v. Davis, 426 U.S. 229, 239-40 (1976). This includes a criminal disenfranchisement law enacted with the intent to deprive one racial group of its right to participate in the political process. Hunter v. Underwood, 471 U.S. 222, 233 (1985). In light of this well-established precedent, the question here is whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement law.


[20] 1. Historical Background


[21] Florida's policy of criminal disenfranchisement has a long history, tracing back well before the Civil War.*fn6 Florida's earliest Constitution, adopted in 1838, authorized the General Assembly to enact criminal disenfranchisement laws and in 1845, Florida's General Assembly enacted such a law.*fn7 Florida's 1861 and 1865 Constitutions also contained criminal disenfranchisement provisions.


[22] There is no doubt that Florida's decision to adopt a criminal disenfranchisement law in these early Constitutions was based on a non-racial rationale. At that time, the right to vote was not extended to African-Americans, and, therefore, they could not have been the targets of any disenfranchisement law. The plaintiffs, however, point to 1868 as the critical date on which they allege Florida's disenfranchisement law became motivated by racial discrimination.


[23] Because the plaintiffs' Equal Protection claim hinges on the 1868 criminal disenfranchisement provision, we must examine the historical context in which that provision was adopted. After the Civil War, the Reconstruction Act required Florida to ratify the Fourteenth Amendment and change its Constitution as a condition for readmittance to the Union.*fn8 In accordance with a federally mandated plan, the South was divided into military districts with Florida under the command of General John Pope. Under his supervision, both African-Americans and white delegates were elected to Florida's 1868 constitutional convention.


[24] During the convention, a struggle for control erupted between the Radical Republicans and the Moderate Republicans. The Radical Republicans "wished to exclude native whites from state politics" and the Moderate Republicans were "opposed to the Radicals and willing to compromise with native whites." After a series of events unfolded, the Radical Republicans and Moderate Republicans each had drafted competing constitutions and both groups claimed to be the lawful convention. The Federal government supervised the process. Faced with a choice between the two constitutions, the United States Congress endorsed the Constitution drafted by the Moderate Republicans. It was subsequently ratified by the voters of Florida. Like Florida's earlier Constitutions, the 1868 Constitution contained a criminal disenfranchisement provision.*fn9 Thus, under federal supervision, a racially mixed delegation produced a constitution granting suffrage to men of all races.


[25] We do not doubt that racial discrimination may have motivated certain other provisions in Florida's 1868 Constitution such as a legislative apportionment scheme that diminished representation from densely populated black counties. The existence of racial discrimination behind some provisions of Florida's 1868 Constitution does not, however, establish that racial animus motivated the criminal disenfranchisement provision, particularly given Florida's long-standing tradition of criminal disenfranchisement. Indeed, the plaintiffs' own historical expert conceded that prior to the instant case, no historian who had studied Florida's 1868 Constitution had ever contemplated that the 1868 criminal disenfranchisement provision was enacted with discriminatory intent.


[26] The plaintiffs offer no contemporaneous evidence from the 1868 constitutional convention demonstrating that racial discrimination motivated the enactment of the 1868 disenfranchisement provision. To advance their theory, the plaintiffs rely almost exclusively*fn10 on a few isolated remarks*fn11 made after the 1868 Constitutional Convention. Although these comments reflect an unfortunate and indefensible racial animus in nineteenth-century Florida politics, there is no evidence that these post-convention comments referenced the 1868 disenfranchisement provision. Indeed, the record strongly indicates that these comments referenced other provisions in the 1868 Constitution, such as the legislative apportionment system.*fn12 In addition, the plaintiffs point to the fact that Florida rejected the Radical Republican Constitution which did not contain a disenfranchisement provision in favor of the Moderate Republican Constitution which contained such a provision. Although this is true, it in no way establishes that racial discrimination motivated the disenfranchisement provision. There is no evidence to suggest that Florida's decision to adopt the Moderate Republican Constitution had anything to do with the disenfranchisement provision.*fn13


[27] Furthermore, Florida did not act alone in choosing its Constitution--the United States Congress expressly approved Florida's 1868 Constitution in readmitting the state to the Union.


[28] 2. 1968 Constitutional Revision


[29] One hundred years after the adoption of the 1868 Constitution, Florida comprehensively revised its Constitution. Once again, Florida chose to maintain a criminal disenfranchisement law, a decision explicitly left to its discretion by the text of the Fourteenth Amendment. The plaintiffs do not allege that racial discrimination motivated the adoption of Florida's 1968 felon disenfranchisement law.


[30] The backdrop for the enactment of Florida's 1968 felon disenfranchisement provision is as follows. In 1965, the Florida Legislature appointed a thirty-seven member Constitutional Revision Commission ("CRC") to engage in "a careful study of the constitution...for the purpose of eliminating obsolete, conflicting and unnecessary provisions as well as for framing an orderly and properly arranged constitution, based upon economic and social changes." 1965 Fla. Laws, ch. 65-651. To engage in this process, the CRC delegated responsibilities to various committees. The Suffrage and Elections Committee was charged with, inter alia, examining Florida's felon disenfranchisement provision.


[31] The plaintiffs contend that any revisions made in 1968 to Florida's felon disenfranchisement law were not substantive in nature.*fn14 We disagree. Florida's 1968 felon disenfranchisement provision is markedly different from Florida's 1868 version. The 1868 Constitution (as amended in 1885) contained two provisions for criminal disenfranchisement.


[32] Section 4 provided:


[33] No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.


[34] Fla. Const. art. VI, § 4 (1885). Section 5 provided:


[35] The Legislature shall have the power to, and shall, enact the necessary laws to exclude...from the right of suffrage, all persons convicted of bribery, perjury, larceny, or other infamous crime...


[36] Fla. Const. art. VI, § 5 (1885). After the 1968 revision, only one provision addressed felon disenfranchisement:


[37] No person convicted of a felony, or adjudicated in this or any state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.


[38] Fla. Const. art. VI, § 4 (1968).


[39] Whereas the 1868 provisions disenfranchised persons convicted of certain misdemeanors such as petty larceny,*fn15 under the new 1968 provision, only those persons convicted of felonies could be disenfranchised. Therefore, the 1968 provision narrowed the class of persons who could be disenfranchised and reenfranchised some persons who previously were disenfranchised.*fn16


[40] Additionally, before submitting its proposal to the CRC, the Suffrage and Elections Committee considered several motions to alter the newly proposed felon disenfranchisement provision.*fn17 Notably, the committee considered but rejected an amendment which would have ended blanket disenfranchisement of felons and instead would have vested the legislature with the power to impose criminal disenfranchisement. The committee also considered and rejected an amendment to limit felon disenfranchisement to those still in prison. Had the committee only been engaged in stylistic revisions, as the plaintiffs urge was the case, it would not have considered or debated these alternatives.


[41] The committee's final proposal then was sent to the CRC. The CRC met to review the changes to the Constitution and submitted a draft to the legislature. The legislature approved the proposed new Constitution containing the disenfranchisement provision; it then was affirmed by the voters of Florida. Thus, Florida's 1968 Constitution, including the felon disenfranchisement provision, was adopted after four stages of review.


[42] 3. Equal Protection Analysis


[43] A facially-neutral law violates the Equal Protection Clause if adopted with the intent to discriminate against a racial group.*fn18 Washington v. Davis, 426 U.S. at 239. In Hunter v. Underwood, the Supreme Court examined head-on an equal protection challenge to a criminal disenfranchisement provision. 471 U.S. at 223. There, the Court determined that Alabama's criminal disenfranchisement provision violated the Equal Protection Clause because it was adopted in 1901 to minimize the political power of its African-American population. Id. at 228-230.*fn19 After the 1901 enactment, the Alabama legislature neither altered the provision nor reenacted it in a political atmosphere free of racial bias. Rather, all of the amendments to the provision were the result of judicial action. Id. at 233.


[44] The Hunter Court articulated a two-step test to analyze whether a criminal disenfranchisement provision violates the Equal Protection Clause. Id. at 227-28. The Court directed as follows:


[45] Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: "[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact...Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.


[46] Id. (citation omitted).


[47] Thus, under the Hunter analysis, we first examine whether racial discrimination was a substantial or motivating factor in the state's decision to deny the right to vote to felons. If there is evidence that racial discrimination was a motivating factor, we then ask whether the state can show that the provision would have been enacted in the absence of any racially discriminatory motive.


[48] a. Applying Hunter v. Underwood


[49] The essence of the plaintiffs' Equal Protection claim is that racial animus motivated the adoption of Florida's disenfranchisement law in 1868 and this animus remains legally operative today despite the re-enactment in 1968. As suggested earlier, we question whether the plaintiffs have adequately demonstrated that racial discrimination motivated the adoption of the 1868 provision. The plaintiffs introduced no contemporaneous evidence showing that racial discrimination motivated the adoption of the 1868 provision. Nevertheless, because of the procedural posture of this case, we are mindful of the need to view the evidence in the light most favorable to the plaintiffs. Thus, we will assume, without deciding, that racial animus motivated the adoption of Florida's 1868 disenfranchisement law. That assumption does not, however, lead us to conclude that the plaintiffs satisfy the first step of Hunter. Importantly, we are concerned here with the validity of the 1968 provision, not the 1868 provision and the plaintiffs concede that the 1968 provision was not enacted with discriminatory intent.*fn20


[50] In Hunter, the Supreme Court left open the precise question we confront here: whether a subsequent legislative re-enactment can eliminate the taint from a law that was originally enacted with discriminatory intent.*fn21 Hunter, 471 U.S. at 233.


[51] In Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1988), the Fifth Circuit recognized that this issue was left open by Hunter and held that the facially neutral disenfranchisement provision in that case overcame its "odious origin" through legislative amendments. 157 F.3d at 391. The Fifth Circuit pointed out that the disenfranchisement provision at issue was originally enacted in 1890 with discriminatory intent, but was amended by the legislature in 1950 to remove burglary as a disenfranchising crime, and was amended in 1968 to add murder and rape as disenfranchising crimes, two crimes which were historically excluded because they were not considered "black" crimes. Id. The court emphasized the deliberative process through which the provision had twice been amended: First, both houses of the legislature had to pass the amendment by a two-thirds vote; then the Mississippi Secretary of State had to publish the full text of the provision at least two weeks before the popular election; finally, a majority of the voters had to approve the full text of the provision. Id. Thus, the Fifth Circuit held that "[b]ecause Mississippi's procedure resulted both in 1950 and in 1968 in a re-enactment of [the provision], each amendment superseded the previous provision and removed the discriminatory taint associated with the original version." Id.


[52] The situation here is similar to that in Cotton v. Fordice. Like Mississippi's provision, Florida's disenfranchisement provision was amended through a deliberative process in 1968. The 1968 provision narrowed the class of disenfranchised individuals to those convicted of felonies. Moreover, the provision first was considered by the Suffrage and Elections Committee. The Committee sent its final proposal to the CRC. The CRC reviewed the changes to the Constitution and sent a draft to the legislature, which approved the new Constitution. Finally, the voters approved the new Constitution. Thus, as in Cotton v. Fordice, Florida's 1968 re-enactment eliminated any taint from the allegedly discriminatory 1868 provision, particularly in light of the passage of time and the fact that, at the time of the 1968 enactment, no one had ever alleged that the 1868 provision was motivated by racial animus.


[53] Even if the plaintiffs were somehow able to satisfy the first step of Hunter, their Equal Protection claim would still fail. Under the second step of Hunter, we examine whether Florida would have chosen to disenfranchise felons in 1968 if legislators did not have a discriminatory motive. In Hunter, this was a more complicated analysis because it required a counter-factual scenario: given that Alabama only legislatively addressed the disenfranchisement issue once, what would legislators have done if they did not have a discriminatory motive? 471 U.S. at 228-29. Here, we have the luxury of not having to delve into a complex counter-factual scenario because Florida simplified the analysis by returning to the issue in 1968. Florida's 1968 Constitution permits us to determine whether the state would have chosen to disenfranchise felons if the impermissible motive was absent. The results are plain: there is no allegation of racial discrimination in 1968 and the legislators decided to include a felon disenfranchisement provision in the revised constitution after consideration by both the CRC and the Suffrage and Elections Committee. This decision was then affirmed by both houses of the legislature and by the voters of Florida.


[54] Thus, Florida's felon disenfranchisement provision is not a violation of the Equal Protection Clause under the standard the Court adopted in Hunter. Florida's re-enactment of the felon disenfranchisement provision in the 1968 Constitution conclusively demonstrates that the state would enact this provision even without an impermissible motive and did enact the provision without an impermissible motive. The state has met its burden as a matter of law by substantively reenacting the law for race-neutral reasons.


[55] The plaintiffs urge that the defendants should bear a greater burden. They contend that Florida must affirmatively prove that racial discrimination was not a substantial or motivating factor behind the disenfranchisement law in 1968. Specifically, the plaintiffs argue that Florida must demonstrate that it acknowledged that racial discrimination tainted the 1868 provision, and yet it knowingly reenacted the disenfranchisement provision for non-discriminatory reasons in 1968. We do not require this level of proof.*fn22 Florida's felon disenfranchisement provision is constitutional because it was substantively altered and reenacted in 1968 in the absence of any evidence of racial bias. Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).


[56] The plaintiffs rely extensively on United States v. Fordice, 505 U.S. 717 (1992) to support their argument. Fordice, however, dealt with a challenge to Mississippi's system of higher education and involved an extreme case of recent state discrimination. Mississippi had actively resisted removing the segregated system of education in the 1960s, failed to fund even limited educational reform in 1969, and was sued by the United States and private plaintiffs in 1975 for failing to comply with the Equal Protection Clause.*fn23 Id. at 722-25. The issue in Fordice was whether the state's facially-neutral education system, adopted only after the state was required to integrate its schools by court order, was valid under the Equal Protection Clause if the system maintained the racially disparate impact that de jure segregation had created. The Supreme Court found that Mississippi's actions were not consistent with the Equal Protection Clause because Mississippi made no effort to remove the discriminatory effects of de jure segregation.


[57] The present case and Fordice are not analogous. First, Florida has a valid public policy reason for disenfranchising felons, where Mississippi did not have a sound justification for its education policies. Justice Thomas, in his concurring opinion in Fordice, specifically stated that heightened review is only applicable when there is no sound public policy justification for the state law, stating: "A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification." Fordice, 505 U.S. at 746. Unlike Mississippi, which did not have a valid educational justification for maintaining segregated schools, Florida has a legitimate reason for denying the vote to felons. Several courts have recognized the propriety of excluding felons from the franchise. See Richardson, 418 U.S. at 54-55; Green v. Board of Elections, 380 F.2d 445, 450-52 (2d Cir. 1967); Beacham v. Braterman, 300 F. Supp. 182, 184 (S.D. Fla.), aff'd, 396 U.S. 12 (1969).


[58] Second, the current Florida provision was passed one hundred years after the allegedly intentional discrimination occurred, whereas Mississsippi's provision was passed shortly after the end of de jure segregation in education. Needless to say, the Florida legislators who passed the 1868 Constitution and the 1968 Constitution were not the same people. In Fordice, however, the legislators who refused to desegregate the Mississippi schools without a court order in the 1960s, most likely overlapped significantly with the legislators who passed the facially neutral education system in the 1970s. Given the proximity in time between Mississipi's intentional discrimination and the facially neutral provision in education, the Court had a healthy skepticism that the facially neutral provision was indeed neutral. Certainly, the Mississipi legislators who voted for the facially neutral provision understood the history of racial segregation in education and the likely effect of their new education system. But this skepticism does not apply here, because it is not reasonable to assign any impermissible motives held by the 1868 Florida legislators to the 1968 legislators who voted for the present felon disenfranchisement provision.


[59] Third, Florida's 1968 felon disenfranchisement provision did not continue the adverse disparate impact of earlier de jure measures, which makes the present case entirely different than the situation in Fordice. At the time the Mississippi legislature adopted its education system, the system of higher education was almost completely racially segregated. 505 U.S. at 722-23. In Fordice, therefore, the Supreme Court was concerned that Mississippi was attempting to perpetuate its racially segregated education system, established in a time of de jure segregation, through a facially-neutral provision. Conversely, when Florida adopted its felon disenfranchisement provision in 1968, the racial effects of the provision were minor.*fn24 In 1968, Florida legislators and voters were not attempting to extend the effects of de jure discrimination with a facially-neutral provision because there was little adverse impact to extend by passing the felon disenfranchisement provision.*fn25


[60] Florida's provision simply did not maintain a pattern of discrimination the way Mississippi's provision did. Consequently, the heightened review in Fordice is not appropriate here.


[61] Finally, we note that this circuit has been reluctant to extend the education line of cases to other areas. As this court stated in Burton v. City of Belle Glade, school desegregation jurisprudence is unique and difficult to apply in other contexts. 178 F.3d 1175, 1190 (11th Cir. 1999); see also Johnson v. DeSoto County Bd. Of Comm'rs, 204 F.3d 1335, 1344 n.18 (11th Cir. 2000). Moreover, as discussed earlier, there is specific precedent from this court and the Supreme Court dealing with criminal disenfranchisement. See Hunter v. Underwood, 471 U.S. 222 (1985); Richardson v. Ramirez, 418 U.S. 24 (1974); Beacham v. Braterman, 300 F.Supp. 182, 183 (1969), aff'd 396 U.S. 12 (1969) (finding by a three judge panel that Florida's decision to disenfranchise felons was not a violation of the plaintiff's equal protection or due process rights). Because these cases establish clear standards by which to judge state action, we are bound by precedent and need not go into other areas of possibly analogous law.


[62] For the above reasons, we affirm the district court's grant of summary judgment on this claim.


[63] IV. The Voting Rights Act Claim


[64] The plaintiffs also argue that Florida's felon disenfranchisement law violates Section 2 of the Voting Rights Act. As a threshold matter, this claim raises an important question of statutory interpretation, namely, whether Section 2 of the Voting Rights Act applies to Florida's felon disenfranchisement provision. The Circuits are split on this issue. Compare Muntaqim v. Coombe, 366 F.3d 102, 124 (2d Cir. 2004) (holding that Section 2 did not reach New York's felon disenfranchisement statute), cert. denied, 125 S.Ct. 480 (2004), and reh'g en banc granted, 2004 WL 2998551 (2004) with Farrakhan v. Washington, 338 F.3d 1009, 1014-15 (9th Cir. 2003) (holding that Section 2 applied to Washington's felon disenfranchisement law), cert. denied, 125 S.Ct. 477 (2004); Wesley v. Collins, 791 F.2d 1255, 1259-61 (6th Cir. 1986) (assuming that Section 2 of the VRA applies to felon disenfranchisement laws but holding that there was no violation); see also Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en banc) (arguing that Section 2 of the VRA does not apply to felon disenfranchisement laws).


[65] 1. The Scope of the Voting Rights Act


[66] Congress enacted the Voting Rights Act pursuant to its enforcement powers under the Fourteenth and Fifteenth Amendments for the remedial purpose of eliminating racially discriminatory voting practices. South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966); United States v. Marengo County Commission, 731 F.2d 1546, 1555 (11th Cir. 1984). Recognizing the subtle ways that states often denied racial minorities the right to vote, in 1982, Congress amended Section 2 of the Voting Rights Act so that a plaintiff could establish a violation without proving discriminatory intent.*fn26 See Chisom v. Roemer, 501 U.S. 380, 383-84 (1991). Thus, it is well-settled that a plaintiff can challenge voting qualifications under a "results" test.*fn27 Id. Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended, provides in relevant part*fn28


[67] (a) 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...


[68] (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that...members [of protected racial minorities] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.


[69] 42 U.S.C. § 1973. Despite its broad language, Section 2 does not prohibit all voting restrictions that may have a racially disproportionate effect. See Chisom, 501 U.S. at 383 ("Congress amended § 2 of the Voting Rights Act to make clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge.") (emphasis added); Muntaqim, 366 F.3d at 116. Felon disenfranchisement laws are unlike other voting qualifications. These laws are deeply rooted in this Nation's history*fn29 and are a punitive device stemming from criminal law. See Richardson, 418 U.S. at 48-52. Today, all states except two have some form of criminal disenfranchisement provision.


[70] Most important, Florida's discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment, which states:


[71] [W]hen the right to vote...is denied to any of the male inhabitants...or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.


[72] U.S. Const. amend. XIV, § 2 (emphasis added).*fn30 As the Court explained in Richardson, "the exclusion of felons from the vote has an affirmative sanction in section 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated [in other cases]." 418 U.S. at 54. Thus, interpreting Section 2 of the Voting Rights Act to deny Florida the discretion to disenfranchise felons raises serious constitutional problems because such an interpretation allows a congressional statute to override the text of the Constitution.


[73] It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to create a constitutional question unless there is a clear statement from Congress endorsing this understanding.*fn31 As the Supreme Court stated in DeBartolo Corp. v. Florida Gulf Coast Trades Council:


[74] [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), and has for so long been applied by this Court that it is beyond debate...This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.


[75] 485 U.S. 568, 575 (1988). Thus, when we analyze the scope of the Voting Rights Act, we should first address whether one interpretation presents grave constitutional questions whereas another interpretation would not, and then examine whether the latter interpretation is clearly contrary to Congressional intent. Id.


[76] Here, the plaintiffs' interpretation creates a serious constitutional question by interpreting the Voting Rights Act to conflict with the text of the Fourteenth Amendment.*fn32 The Fourteenth and Fifteenth Amendments to the United States Constitution grant Congress the power to enforce those amendments' substantive provisions "by appropriate legislation." U.S. Const. amend. XIV, § 5; XV, § 2. Congress may enforce the substantive provisions of these Amendments by regulating conduct that does not directly violate those Amendments. See South Carolina v. Katzenbach, 383 U.S. 301 (1966). As the Court has explained, "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 727-28 (2003).


[77] Nonetheless, Congress's power in this regard is not absolute. To be a valid exercise of Congress's enforcement power, "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997).


[78] Congress undoubtedly has the constitutional authority to prohibit many measures that are not explicitly prohibited by the Fourteenth Amendment, but this enforcement power arguably does not extend to prohibiting constitutionally protected practices. This is not to say that a state's felon disenfranchisement provision can never be challenged. As the Court's decision in Hunter made clear, states cannot use disenfranchisement provisions to discriminate intentionally on the basis of race. 471 U.S. at 233. Thus, the plaintiffs have a remedy if the state's provision violates the Equal Protection Clause. Id. It is a different matter, however, when a federal statute is read to limit a state's delegated power.


[79] Moreover, as the Second Circuit detailed in Muntaqim, there are additional reasons why the plaintiffs' interpretation of the Voting Rights Act calls into question Congress's enforcement power. 366 F.3d at 118-126. For Congress to enact proper enforcement legislation, there must be a record of constitutional violations.*fn33 See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 368 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89 (2000). In Oregon v. Mitchell, 400 U.S. 112, 118 (1970), superseded by U.S. Const. amend. XXVI, the Court reviewed the 1970 amendments to the Voting Rights Act, which imposed a temporary ban on literacy tests and lowered from 21 to 18 the minimum voting age. There, the Court affirmed the literacy test ban but held that Congress exceeded its authority in lowering the voting age from 21 to 18 in state elections. The Court concluded that "Congress had before it a long history of discriminatory use of literacy tests to disenfranchise voters on account of their race" but "Congress made no legislative findings that the 21 year old requirement was used by the States to disenfranchise voters on account of race." Mitchell, 400 U.S. at 130, 132.


[80] As was the case in Mitchell, when Congress enacted the VRA and its subsequent amendments, there was a complete absence of congressional findings that felon disenfranchisement laws were used to discriminate against minority voters.*fn34 Without a record of constitutional violations, applying Section 2 of the Voting Rights Act to Florida's felon disenfranchisement law would force us to address whether Congress exceeded its enforcement powers under the Fourteenth and Fifteenth Amendments.*fn35


[81] For these reasons, we believe that the plaintiffs' interpretation of the VRA raises grave constitutional concerns.*fn36 For the plaintiffs' interpretation to be correct, we must look for a clear statement from Congress that it intended such a constitutionally-questionable result. DeBartolo, 485 U.S. at 575. Instead of a clear statement from Congress indicating that the plaintiffs' interpretation is correct, the legislative history indicates just the opposite--that Congress never intended the Voting Rights Act to reach felon disenfranchisement provisions.*fn37


[82] 2. Congressional Statements in 1965


[83] Congress first passed the Act in 1965 to prevent states from discriminating against minorities in voting. The act was intended to reach voting tests and other practices, such as districts designed by states to minimize minority voting. See Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir. 1999). The Senate and House reports strongly suggest, however, that Congress did not intend Section 2 of the Voting Rights Act to cover felon disenfranchisement provisions.*fn38 These reports indicate that tests for literacy or good moral character should be scrutinized, but felon disenfranchisement provisions should not. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2562. The only place where legislators addressed felon disenfranchisement was with regard to Section 4 of the VRA, where the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute's coverage, stating:


[84] The third type of test or device covered is any requirement of good moral character. This definition would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.


[85] Id. Likewise, the House Report also states that the Voting Rights Act was not designed to reach felon disenfranchisement provisions:


[86] This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.


[87] H.R. Rep. No. 89-439, 1965 U.S.C.C.A.N. 2437, 2457. These reports indicate that neither house of Congress intended to include felon disenfranchisement within the statute's scope. These are the only references to felon disenfranchisement made in reports to the 1965 act.


[88] Furthermore, this court's predecessor decided that the 1965 Act did not cover a state's decision to exclude felons from voting. In United States v. Ward, the former Fifth Circuit held that the Voting Rights Act prohibited Louisiana from imposing any literacy test or other qualification on voter registration, but found that the act did not extend to felon disenfranchisement rules. 352 F.2d 329, 332 (5th Cir. 1965).*fn39 There, the court issued an order enjoining the state from applying the voting tests, but explicitly exempted felony convictions from the order. The court ordered that the state cease ...requiring any applicant for voter registration in Madison Parish, as a precondition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in Section 4(c) of the Voting Rights Act of 1965, Public Law 89-110, 79 Stat. 438-439, i.e., any requirement (including the "good character" requirement specified in Article VIII, Section 1(c) of the Louisiana Constitution and Title 18, Section 32, of the Louisiana Code, except to the extent that these provisions permit disqualification for conviction of a felony).


[89] Id. at 332 (emphasis added).


[90] 3. Congressional Statements in 1982


[91] Congress most recently amended the Voting Rights Act in 1982 in response to the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55 (1980), in an attempt to clarify the standard for finding Section 2 violations. In revising the statute, Congress intended to depart from the intent-based standard of the Supreme Court's Equal Protection jurisprudence and establish an effects-based standard. S. Rep. 97-417, 15-17, 1982 U.S.C.C.A.N. 177, 192-94 (1982). After the 1982 amendment, a state practice could survive Equal Protection Clause scrutiny but fail Section 2 Voting Rights Act scrutiny.


[92] Neither the plain text nor the legislative history of the 1982 amendment declares Congress's intent to extend the Voting Rights Act to felon disenfranchisement provisions. The Senate Report, which details many discriminatory techniques used by certain jurisdictions, made no mention of felon disenfranchisement provisions.*fn40


[93] Although it is conceivable that certain legislators may have wanted the Voting Rights Act to encompass felon disenfranchisement provisions, we should not assume that Congress intended to produce a statute contrary to the plain text of the Fourteenth Amendment without a clear statement. As the Second Circuit noted in Muntaqim, "considering the prevalence of felon disenfranchisement [provisions] in every region of the country since the Founding, it seems unfathomable that Congress would silently amend the Voting Rights Act in a way that would affect them." 366 F.3d at 123-24. There is simply no discussion of felon disenfranchisement in the legislative history surrounding the 1982 amendments.


[94] Thus, we believe that applying Section 2 of the Voting Rights Act to felon disenfranchisement provisions raises grave constitutional concerns.*fn41 Chiefly, the plaintiffs' interpretation calls for a reading of the statute which would prohibit a practice that the Fourteenth Amendment permits Florida to maintain. As a matter of statutory construction, we should avoid such an interpretation. The case for rejecting the plaintiffs' reading of the statute is particularly strong here, where Congress has expressed its intent to exclude felon disenfranchisement provisions from Voting Rights Act scrutiny. Accordingly, we affirm the district court's grant of summary judgment to the defendants on the Voting Rights Act claim.


[95] V. Wisdom of the Policy


[96] Several amici curiae argue that, as a policy matter, felons should be enfranchised, particularly those who have served their sentences and presumably paid their debt to society. Even if we were to agree with the amici, this is a policy decision that the United States Constitution expressly gives to the state governments, not the federal courts. U.S. Const. Amend. XIV, § 2. Florida has legislatively reexamined this provision since 1868 and affirmed its decision to deny felons the right to vote. Federal courts cannot question the wisdom of this policy choice.


[97] VI. Conclusion


[98] For the foregoing reasons, we AFFIRM the district court's grant of summary judgment in favor of the defendants.


[99] AFFIRMED.


[100] TJOFLAT, Circuit Judge, specially concurring, in which, PRYOR, Circuit Judge, joins:


[101] Section 2 of the Voting Rights Act (VRA) "outlaws election practices that result in racial discrimination." Nipper v. Smith, 39 F.3d 1494, 1509-10 (11th Cir. 1994) (en banc) (opinion of Tjoflat, C.J., joined by Anderson, J.). Specifically, it bars any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . 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." 42 U.S.C. § 1973(a). Focusing only on the "which results in" language, both dissenters argue that we should remand this case to the district court for a trial to determine whether Florida's felon-disenfranchisement provision*fn42 produces a racially disparate impact.


[102] The majority argues that remand is inappropriate because the dissenters' theory creates a constitutional question that can be avoided by construing the statute not to cover felon-disenfranchisement provisions.*fn43 I write separately to demonstrate that, even if the dissenters are correct that the language of section 2 of the VRA unambiguously covers felon disenfranchisement provisions, summary judgment was appropriate in this case because the plaintiffs have not been able to show that whatever denial or abridgement of voting rights resulted from Florida's felon disenfranchisement provision occurred "on account of race or color." Remand is therefore not required.


[103] It is true that section 2 of the VRA now requires something less than a showing of actual intent to discriminate by a State or political subdivision. I do not believe, however, that it requires only, as both dissenters imply, a showing of racially disparate effects. A brief discussion of section 2's history demonstrates this point. In 1980, the Supreme Court decided City of Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980). Prior to its holding in that case, a number of circuits had applied a "totality of the circumstances" analysis in vote-dilution cases brought under the Equal Protection Clause of the Fourteenth Amendment. The old Fifth Circuit, our predecessor court, established the framework for this kind of analysis in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973). That framework required courts to judge vote-dilution cases by measuring the relevant facts according to a number of factors, now commonly referred to as Zimmer factors.*fn44 Importantly for purposes of this discussion, those factors required a showing of something less than intent by a State actor to discriminate, but something more than a mere disparate impact to make out a claim of vote dilution.


[104] Bolden involved a challenge to an at-large election arrangement in a multimember district in Mobile, Alabama. In that case, the Supreme Court held that Zimmer, "coming before Washington v. Davis, 426 U.S. 229 . . . , was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause-that proof of a discriminatory effect is sufficient." Bolden, 446 U.S. at 71, 100 S. Ct. at 1501-02.*fn45 The Court viewed this conclusion as inescapable in light of Davis, and it concluded that to make out a vote-dilution claim a "plaintiff must prove that the disputed plan was 'conceived or operated as [a] purposeful devic[e] to further . . . discrimination.'" Id. at 66, 100 S. Ct. at 1499 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S. Ct. 1858, 1872, 29 L. Ed. 2d 363 (1971)) (alterations and omission original).


[105] In addition to seeking relief under a vote-dilution theory under the Equal Protection Clause, the plaintiffs had also sought relief under the VRA. Bolden rejected this approach, too, holding that "it is apparent that the language of § 2 [of the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Id. at 60-61, 100 S. Ct. at 1496 (footnote omitted). The Court noted explicitly that this meant by extension that section 2 as then written did not cover disparate-impact cases: "Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." Id. at 62, 100 S. Ct. at 1497.


[106] Apparently alarmed by these holdings, Congress set out to amend the VRA, ultimately doing so in 1982. See generally S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177; see also Voting Rights Act Amendments, Pub. L. No. 97-205, 96 Stat. 131 (1982). The effect of this amendment was to recast the then-existing verison of section 2 as section 2(a) of the VRA and to add a new subsection, subsection (b).


[107] The wording of the new section 2(a) is not identical to the old section 2. The new section 2(a) made two modifications: first, it made one change in phrasing. Compare 42 U.S.C. § 1973 (preamendment) ("No voting qualification . . . shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." (emphasis added)), with 42 U.S.C. § 1973(a) (postamendment) ("No voting qualification . . . shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color." (emphasis added)). Second, 2(a) added a phrase to make clear that abridgement or denial could be recognized "as provided in subsection (b)." 42 U.S.C. § 1973(a). The intended effect of the second modification is obvious; that of the first less so. As I explain, the first modification reflects Congress's desire to remove an intent requirement, but it does not reflect a desire to replace it with a mere disparate-impact requirement.


[108] It is clear from both the language of the new subsection (b) and the extensive Committee Report that accompanied the amendment that Congress intended to restore what it perceived to be the pre-Bolden status quo. Specifically, the subsection (b) language reflects vote-dilution rhetoric from pre-Bolden Supreme Court cases. Compare 42 U.S.C. § 1973(b) ("A violation . . . is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.") with, e.g., White v. Regester, 412 U.S. 755, 766, 93 S. Ct. 2332, 2339, 37 L. Ed. 2d 314 (1973) ("The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question-that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice."). The Committee Report specifically evinces the view of Congress that Bolden was contrary to its understanding of the operation of section 2, suggesting by strong implication at least that Congress had thought section 2 was operating successfully prior to Bolden. See, e.g., S. Rep. 97-417, at 15 (1982), reprinted in 1982 U.S.C.C.A.N. at 192 ("The proposed amendment to Section 2 of the Voting Rights Act is designed to restore the legal standard that governed voting discrimination cases prior to the Supreme Court's decision in Bolden.").


[109] Consistent with that intent, we have, as Judge Barkett suggests in her dissent, applied section 2 in the vote denial context. See Burton v. City of Belle Glade, 178 F.3d 1175, 1197-98 (11th Cir. 1999). Dismissing the vote-denial claim in a cursory manner in that case, however, we did not pause to establish the minimum requirements of a prima facie vote-denial claim under section 2, and the case is thus of dubious precedential value, least of all to support a proposition that mere disparate impact is sufficient to establish such a claim. In fact, if anything, our holding on the vote-denial claim in Burton stands for a contrary conclusion.*fn46


[110] In short, nothing in Burton requires us to return this case to the district court simply because Florida's felon-disenfranchisement law disadvantages minorities out of proportion to their makeup of the general population of the State.


[111] Thus, the pre-Bolden application of section 2, along with the legislative history surrounding the amendment and our own postamendment application of section 2 in the vote-denial context all point to the inexorable conclusion that something more than a mere showing of disparate effect is essential to a prima facie vote-denial case.*fn47 The reservoir of that requirement and the key to understanding the minimum content of such a case lie in the words "on account of" in subsection (a), for those words alone constrain the preceding, seemingly broad "applied in a manner which results in" language. Those words do not suggest, as the majority intimates, that Congress may have designed some lingering requirement of intent by state actors. See ante, at 29 n.30. Instead, as I have argued elsewhere, these words suggest a causation requirement, that is, a showing that racial bias in the relevant community caused the alleged vote denial or abridgment.*fn48 Zimmer set out some of the circumstantial factors that might be referred to in attempting to show such causation in the vote-dilution context, some of which are transferable to the vote-denial context. I am mindful that voting rights are protected against "sophisticated as well as simple-minded modes of discrimination," Lane v. Wilson, 307 U.S. 268, 275, 59 S. Ct. 872, 876, 83 L. Ed. 1281 (1939), and that we should be alert to unconventional factors indicating bias-caused vote denials. But I do not believe there are any factors of causation, whether to be found in our precedent or in our wildest dreams, that can establish anything on the basis of the facts presented in this case other than that the causation of the denial of the right to vote to felons in Florida consists entirely of their conviction, not their race.


[112] Nearly all of the evidence advanced by the plaintiffs demonstrates only disproportionality, but, as I have argued, it is a basic section 2 principle that something more must be shown to survive summary judgment. Plaintiffs argue in their brief that their proof "was significantly more extensive than simply 'evidence of disproportionate impact,'" but they rely chiefly on "different outcomes for similarly situated offenders at various stages of the criminal justice process." The main thrust of their argument is that "racial bias in the criminal justice system" interacts with Florida's disenfranchisement provision to the disadvantage of minority voters. It is true that, if plaintiffs could support this claim with evidence, they might demonstrate the sort of causal connection between racial bias and disparate effect necessary to make out a vote-denial claim. But the evidence plaintiffs advance simply does not support this proposition, even if we were to reverse the district court's order excluding various experts from testifying. In fact, leaving aside the excluded evidence and raw disparate impact data, plaintiffs' brief does not appear to advance a single showing of contemporary race bias that ostensibly is producing the comparatively well-evidenced disparate-impact data.*fn49


[113] Thus, I do not believe that plaintiffs have made a case sufficient to survive summary judgment. I would avoid the task of determining whether a constitutional question is created by application of section 2 to felon-disenfranchisement provisions entirely and simply rule that plaintiffs do not have a case. In any event, even if the dissenters are correct that the majority has misanalyzed the statutory-interpretation question, the majority has arrived at the correct judgment in this case. I thus concur.


[114] WILSON, Circuit Judge, concurring in part and dissenting in part:


[115] I concur with the majority's holding that the defendants are entitled to summary judgment with respect to the plaintiffs' Equal Protection claim. Whatever discriminatory motives may have prompted Florida to enact the 1868 criminal disenfranchisement provision, the plaintiffs presented no evidence that intentional discrimination motivated the 1968 Constitutional Revision Committee. As a matter of law, the state met its burden by re-enacting the felon disenfranchisement provision without an impermissible motive, as suggested by Hunter v. Underwood, 471 U.S. 222, 228, 105 S. Ct. 1916, 1920 (1985). For the reasons stated by the majority, I concur in affirming the district court's resolution of this claim.


[116] I write separately, however, to dissent from the majority's conclusion that racially discriminatory felon disenfranchisement provisions are not cognizable under § 2 of the Voting Rights Act ("VRA"). The majority overstates the case for constitutional avoidance. Because it is possible to harmonize the text of the VRA with the Constitution, we should not stray from the plain text of the statute. See City of Rome v. United States, 446 U.S. 156, 172, 100 S. Ct. 1548, 1559 (1980).


[117] I. SCOPE OF THE VOTING RIGHTS ACT


[118] Section 2 of the VRA prohibits "voting qualification[s] . . . imposed or applied by any State" that "results in a denial or abridgement" of the right to vote "on account of race or color." 42 U.S.C. § 1973(a). As a comprehensive and expansive remedy for racially discriminatory denials of the right to vote, § 2 reaches a wide variety of electoral practices and schemes.*fn50 The standard for evaluating a § 2 claim is "based on the totality of the circumstances." 42 U.S.C. § 1973(b). As a purely textual matter, a voting qualification based on felony status that interacts with social and historical conditions to produce a racially discriminatory effect, such as race bias in the criminal justice system, falls within the scope of the VRA. See Thornburg v. Gingles, 478 U.S. 30, 45-47, 106 S. Ct. 2752, 2763-64 (1986) (describing interactive standard that accounts for "past and present reality").


[119] The majority fears that interpreting the VRA in this manner "raises serious constitutional problems." Consequently, the majority construes the statute to avoid this "conflict," reading the VRA to preclude challenges to criminal disenfranchisement provisions.


[120] To reach its result, the majority places great stock in § 2 of the Fourteenth Amendment, which reduces a state's representation in Congress when the state denies its male citizens the right to vote unless it abridges the right "for participation in rebellion, or other crime." U.S. Const. amend. XIV, § 2. The majority characterizes this clause as sui generis--deeply rooted in our nation's history and fixed by the text of the Constitution. However, that Section does not constitute an affirmative grant of state power to disenfranchise criminals. Rather, as a Reconstruction Amendment, this Section was intended to punish states that were slow to grant the franchise by reducing their representation in Congress. In holding that states have unfettered discretion to disenfranchise criminals, the majority relies upon a clause that is an exception to this punishment.


[121] Unlike the majority, I do not see a need to construe the statute in this manner. The "avoidance" canon of construction applies if there is ambiguous statutory language. See Southlake Prop. Assoc., Ltd. v. City of Morrow, 112 F.3d 1114, 1119 (11th Cir. 1997). Where, as here, there is no ambiguity, the "avoidance" doctrine should not be employed as a pretext for rewriting clear statutory language. Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000) (citation omitted).


[122] Furthermore, I do not think that § 2 of the Fourteenth Amendment amounts to a right to disenfranchise citizens at will, heedless of the consequences. It is a right only by implication, and therefore does not conflict with Congress's power to limit criminal disenfranchisement. The Fourteenth Amendment does not define the outer limits of a state's "right" to disenfranchise criminals, but it is certain that a state's right to disenfranchise is not absolute. States may not intentionally disenfranchise felons on account of race. Hunter, 471 U.S. at 233, 105 S. Ct. at 1922. Likewise, I believe that a state may not disenfranchise criminals in a manner resulting in a racially discriminatory denial of the right to vote. This is because the VRA reaches conduct for which it may not always be possible to prove purposeful discrimination. The VRA recognizes that discriminatory effects are probative of race bias in electoral schemes and practices.


[123] In sum, § 2 of the Fourteenth Amendment does not conflict with Congress's attempts to prohibit criminal disenfranchisement that is not racially neutral. That clause does not limit Congress's power to prohibit a voting qualification that results in a denial of equal access to the electoral process on the basis of race or color. See 42 U.S.C. § 1973. I see no conflict between the Constitution and the VRA in this regard, and therefore I see no reason to interpolate an exemption that does not exist.


[124] I do not quarrel with the state's discretion to disenfranchise felons as a matter of policy. Rather, I take issue with the majority's characterization of that discretion. Far from "deny[ing] Florida the discretion to disenfranchise felons," as the majority fears, states are free "to disenfranchise convicted felons in a racially neutral manner--that is, in a manner that is neither racially motivated nor produces racially disproportionate effects." Johnson v. Bush, 353 F.3d 1287, 1306 n.27 (11th Cir. 2003). My view is that the Voting Rights Act prohibits criminal disenfranchisement provisions that accomplish denial of the right to vote "on account of race." 42 U.S.C. § 1973(a).


[125] Importantly, I am not convinced that the plaintiffs have proven their case. The plaintiffs' statistical evidence raises an inference that the disparate impact of felon disenfranchisement results from the interaction of that scheme with race bias in the criminal justice system and the lingering effects of racial exclusion.*fn51


[126] In a trial on the merits, the defendants would be given every opportunity to present rebuttal evidence to question the methodology of this analysis or to present their own analysis explaining the disparity. I dissent because I believe that the district court's resolution of the merits was premature and that the plaintiffs were entitled to present their case at trial.


[127] II. SCOPE OF CONGRESS'S POWER


[128] The majority also suggests that, were a § 2 VRA claim challenging criminal disenfranchisement provisions cognizable, Congress might have exceeded its enforcement powers of the Fourteenth and Fifteenth Amendments. I respectfully disagree with this conclusion.


[129] Congress's enforcement authority is at its most expansive when protecting against discrimination based on suspect classifications or when protecting fundamental rights. Thus, to carry out the basic objectives of the Fourteenth and Fifteenth Amendments, Congress may enact "prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent." Tennessee v. Lane, 541 U.S. 509, __, 124 S. Ct. 1978, 1986 (2004) (upholding Title II of the Americans with Disabilities Act as a valid exercise of Congress's Fourteenth Amendment enforcement power); see also City of Rome, 446 U.S. 156, 100 S. Ct. 1548 (upholding VRA's § 5 preclearance requirement for covered jurisdictions seeking electoral changes as a valid exercise of Congress's Fifteenth Amendment enforcement power).


[130] Despite the strength of Congress's remedial enforcement power, it is not without limits. Congress's remedy must respond to states' actual violations of a protected right. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89, 120 S. Ct. 631, 649 (2000); Fla. Prepaid Post-secondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640, 199 S. Ct. 2199, 2207 (1999). Therefore, Congress must identify the "history and pattern of unconstitutional . . . discrimination" that it seeks to address, creating a legislative record to support its exercise of enforcement power. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S. Ct. 955 (2001). Furthermore, valid § 5 legislation must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520, 117 S. Ct. 2157, 2164 (1997).*fn52


[131] Congress enacted the VRA pursuant to the enforcement clauses of the Fourteenth and Fifteenth Amendments in response to rampant violations of the right to vote. United States v. Bd. of Comm'rs, 435 U.S. 110, 126-27, 98 S. Ct. 965, 976-77 (1978). The scope of the VRA and those amendments are not coterminous: As a remedial statute, the VRA reaches beyond what is prohibited by the Fourteenth and Fifteenth Amendments. See, e.g., United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir. 1984). The VRA not only safeguards a fundamental right, voting, but also protects against discrimination based on race, a suspect class. See Lane, 541 U.S. at __, 214 S. Ct. at 1992 (noting that because fundamental rights, such as access to the courts, receive heightened scrutiny, review of the legislative record for a pattern of constitutional violations is less searching); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735-36, 123 S. Ct. 1972, 1981-82 (2003) (explaining that for suspect classifications, such as sex, that are subject to heightened scrutiny, it is "easier for Congress to show a pattern of state constitutional violations"). The Act is properly considered a remedial statute, passed with the broadest exercise of power allowed under the Fourteenth and Fifteenth Amendments.


[132] The VRA is entitled to a broad reading because Congress has chronicled extensive state violations of the right to vote. In 1965, when first enacting the VRA, Congress documented violations of the Fifteenth Amendment, including "grandfather clauses" that permitted previously registered voters (all white) to register without taking a literacy test, laws restricting the participation in political primaries to whites only, procedural hurdles, racial gerrymandering, improper challenges, and the discriminatory use of tests. See H.R. Rep. No. 89-439, at 8 (1965) (citing Supreme Court decisions). Congress was particularly concerned about states' use of tests that discriminated against racial minorities, including literacy tests, constitutional interpretation tests, and tests concerning the obligations of citizenship. H.R. Rep. No. 89-439, at 12.


[133] All of these devices worked in concert to depress the registration and turnout rate among voting-age African Americans. For example, prior to the VRA only 6.7 % of the African-American voting age population in Mississippi was registered to vote. In Alabama, the registration rate of African Americans lagged behind that of whites by 49.9 %. See S. Rep. No. 94-295, at 13 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 779. Perhaps more problematic was the revelation that innovation in discrimination marked the landscape of voting rights. See S. Rep. No. 89-162, at 5 (1965); S. Rep. No. 89-439, at 10("[E]ven after apparent defeat resisters seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods.") (citing United States v. Mississippi, 380 U.S. 128 (1965), and United States v. Penton, 212 F. Supp. 193 (M.D. Ala.) (1962)). Congress found specifically that it was impossible to predict the variety of means that would be used to infringe on the right to vote.


[134] In response, Congress passed the VRA, which operates on two levels. First, Congress recognized that some areas of the country had a particularly bad history of voting discrimination. Section 5 of the VRA thus designated these regions as "covered jurisdictions, " requiring them to clear any changes in voting or election laws with either the Attorney General or a federal court in the District of Columbia before putting them into effect. 42 U.S.C. § 1973c. The approval of the Attorney General or the court was conditioned on a showing that the changes would not discriminate in purpose or in effect. Additionally, because Congress understood that violations of voting rights were not confined to covered jurisdictions, it included § 2, a nationwide remedy less intrusive on states' functions. See S. Rep. No. 97-417, at 41-42 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 219-20.


[135] It is of no moment that the VRA's legislative record does not contain specific examples of discrimination based on felon status. Boerne and its progeny require that the legislative record show a pattern of state constitutional violations, not that the right at issue be abridged in a particular way. See Lane, 541 U.S. at __, 124 S. Ct. at 1988-90; Garrett, 531 U.S. at 368-69, 121 S. Ct. at 964-65; Kimel, 528 U.S. at 89, 120 S. Ct. at 648-49; Boerne,521 U.S. at 530, 117 S. Ct. at 2169. If this were the standard, states would always have one free bite at the apple, which is not what Congress intended when it passed the VRA to deal with voting discrimination "comprehensively and finally." S. Rep. No. 97-417, at 5, reprinted in 1982 U.S.C.C.A.N. at 182.


[136] Congress has found that racial discrimination in voting has a long history in our country. The remedy that Congress chose to respond to the pattern of state discrimination is to prohibit voting discrimination in whatever form it takes. See Gingles, 478 U.S. at 45 n.10, 106 S. Ct. at 2764 n.10 ("Section 2 prohibits all forms of voting discrimination . . . ."). This remedy is congruent and proportional to the goal of enforcing the fundamental right to vote. When voting interacts with proof of racial bias in criminal justice, Congress is well within its power to prohibit the resultant discrimination.


[137] BARKETT, Circuit Judge, dissenting:


[138] I dissent because I believe summary judgment was improperly granted on both plaintiffs' claims under the Equal Protection Clause of the Constitution and Section 2 of the Voting Rights Act.


[139] I. The Equal Protection Claim


[140] The majority frames the question presented in this case as "whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement law." Majority Op. at 6 (emphasis in original). The framing of the question in this way dictates an answer that, in my view, fails to correctly analyze the equal protection claim here in the context of a summary judgment motion.


[141] The majority and the district court simply find that because there is no evidence of intentional discrimination in the 1968 re-enactment of the relevant constitutional provision, the defendants are entitled to summary judgment. But given the nature of the plaintiffs' claim and the evidence they present, the court cannot look at the 1968 re-enactment in a vacuum. The plaintiffs contend that the original constitutional provision of 1868 (taking the evidence in the light most favorable to the plaintiffs at this stage) was passed for racially discriminatory purposes.*fn53 If that is so, then United States v. Fordice, 505 U.S. 717, 739 (1992), and Knight v. Alabama, 14 F.3d 1534, 1550 (11th Cir. 1994) teach us that to repudiate the tainted earlier provision, the government must show not only a lack of intentional racial discrimination in the 1968 re-enactment, but also that the re-enactment was motivated by independent, legitimate goals that "broke the chain" linking it to the original discriminatory motive. This would not require the state to explicitly address the law's odious origins, but simply articulate the non-racial policy justification that drove its re-enactment.


[142] Where the state has not demonstrated any race-neutral basis for the re-enactment, there can be no "break" in the chain of invidious intent. See, e.g., Fordice, 505 U.S. at 739; Knight, 14 F.3d at 1550 (holding that, "[o]nce it is determined that a particular policy was originally adopted for discriminatory reasons, [and] . . . is 'traceable' to the original tainted policy, or is 'rooted' or has its 'antecedents' in that original policy" the burden of proof lies with the state to show that it has dismantled the past discrimination to "break the causal chain"). Though the majority cautions that we have never followed the rule of Fordice outside of the educational context,*fn54 I believe there is no principled basis not to apply Fordice to a matter of equal if not greater importance --the fundamental right to participate in the democratic process. Cf. Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) ("the right of suffrage is a fundamental matter . . . . preservative of other basic civil and political rights").


[143] In addition to its concerns regarding the application of Fordice outside of the educational context, the majority holds that the rule announced in Fordice is inapplicable here because there are valid public policy reasons for disenfranchising felons, while no such reasons underpinned the educational policies considered in Fordice. Though the valid reasons recognized by the court may have driven Florida's decision to retain its felon disenfranchisement scheme, the record fails to demonstrate that those reasons in fact motivated the 1968 re-enactment. The court's attempt to distinguish Fordice based on the existence of a potentially valid public policy thus begs the very question of the motivation behind the 1968 re-enactment. Though valid public policies might have similarly underpinned the educational policies at issue in Fordice, the Court nonetheless required the state to demonstrate that those policies had a sound race-neutral educational justification.


[144] Although the majority does not recognize the Fordice framework as applicable in this context, it nonetheless suggests that the record here supports a conclusion that the 1968 re-enactment was driven by race-neutral considerations because it was "deliberative." Majority Op. at 18-19. There is no indication, however, in the record of deliberations that the subcommittee had any non-discriminatory reasons for re-enacting the disenfranchisement law, nor any indication that the Constitutional Revision Committee as a whole or the legislature even discussed it. While the 1968 subcommittee minutes trace the committee's procedure and its changes to the disenfranchisement provision's text, their limited nature sheds no light at all as to whether the committee was motivated by legitimate non-discriminatory reasons, or whether they saw the felon disenfranchisement provision as a legacy of previous constitutions whose justification did not need to be revisited in substance. Cf. Richardson v. Ramirez, 418 U.S. 24, 44 (1974) ("[T]he Journal of that Committee's proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2"). As such, while the adjective "deliberative" describes the procedural aspects of the decision, it need not include any substantive component at all.


[145] The record at this juncture does not permit a conclusion that the legislature's textual modifications removed the prior racial taint in any meaningful way. Where the provision explicitly disenfranchising all felons remained unchanged in substance, and without evidence that the 1968 re-enactment had an independent, legitimate motivation, the majority's conclusion that the 1968 process cleansed the taint of racial aminus as a matter of law is unfounded at this stage of the proceedings. See Fordice, 505 U.S. at 747 (Thomas, J., concurring) (observing that "discriminatory intent does tend to persist through time"); Kirkey v. Bd. of Supervisors, 554 F.2d 139, 148 (5th Cir. 1977) (en banc) ("[N]othing in [Washington v. Davis or Arlington Heights] suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action."). Indeed, under the majority's rule, legislatures could continue to utilize statutes that were originally motivated by racial animus, and that continue to produce discriminatory effects, so long as they re-promulgate the statutes "deliberately" and without explicit evidence of an illicit motivation.


[146] To conclude that the 1968 re-passage of Florida's felon disenfranchisement provision is in and of itself sufficient to "eliminate the racial taint," the majority relies on the Fifth Circuit's decision in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998). The panel in Cotton, like the majority, fails to analyze the claim presented in terms of the government's burden to show that a legitimate neutral reason underlaid its re-enactment of a law tainted by racial animus. However, even if I were to accept the Fifth Circuit's rule in Cotton, the case is distinguishable on its facts. The statute in Cotton, Mississippi's felon disenfranchisement law, was originally crafted to intentionally deny the vote to those convicted of so-called "black crimes," while preserving the franchise for those felons convicted of crimes thought to be committed by whites. Cotton holds that the legislature successfully removed the original "taint" of this discriminatory scheme by removing "black crimes" from the disenfranchising list, and successively adding murder and rape --"crimes historically excluded . . . because they were not considered 'black' crimes." Cotton, 157 F.3d at 391. Thus, the legislative amendment process in Cotton proceeded as the converse of the enactment process: the amendment removed those aspects of the law shown to be rooted in racial animus. The same cannot be said for Florida's felon disenfranchisement law. Its 1968 re-enactment resulted in only non-substantive textual changes to the statute,*fn55 leaving unchanged the essential feature that plaintiffs' evidence links to racial animus: Florida's disenfranchisement of all felons.


[147] As the district court found and the majority assumes, plaintiffs' showing of racial animus in the original 1868 enactment raises a genuine issue of material fact as to whether it was adopted with a discriminatory purpose. Where the record is insufficient to conclude that either the 1968 re-enactment was motivated by legitimate concerns or that the 1868 provision would have been enacted even without racial motivations, summary judgment was improperly granted.


[148] II. The Voting Rights Act Claim


[149] The simple question before us is whether or not Section 2 of the Voting Rights Act ("VRA") is applicable to plaintiffs' claim that they have been denied the right to vote. As the majority states, this is not a vote dilution claim.*fn56


[150] Although I do not know whether plaintiffs can ultimately succeed, their contention that Florida's felon disenfranchisement law effectively denies their right to vote because they are black is clearly encompassed by the plain language of the VRA, which prohibits state enforcement of any "qualification or prerequisite to voting" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . ." 42 U.S.C. § 1973(a) (2005); Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003), cert. denied sub nom. Locke v. Farrakhan, 125 S.Ct. 477 (2004); Baker v. Pataki, 85 F.3d 919, 935-36 (Feinberg, J., writing for an equally divided court) (2d. Cir. 1996)*fn57 ; Wesley v. Collins, 791 F.2d 1255, 1259 (6th Cir. 1986) (considering, without analysis, a felon disenfranchisement claim brought under Section 2 of the VRA); see also, Thornburg v. Gingles, 478 U.S. 30, 45 n.10 (1986) ("Section 2 [of the VRA] prohibits all forms of voting discrimination . . . .").


[151] The first step in statutory interpretation requires that courts apply the plain meaning of the statutory language unless it is ambiguous. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992); United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002). Only when we find ambiguity in the statute's text do we apply canons of statutory interpretation, such as the canon of constitutional avoidance that the majority utilizes. Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134 (2002). The language of Section 2 of the VRA is unambiguous, and compels a conclusion that it applies to felon disenfranchisement provisions. Such a provision is unquestionably a "voting qualification or prerequsite to voting"*fn58 that is "applied by [the] state." 42 U.S.C. § 1973(a) (2005). Whether or not felon disenfranchisement results in vote denial "on account of race or color" under the totality of the circumstances remains the ultimate question for the trier of fact.


[152] Given the plain meaning of the language of Section 2, we are thus squarely faced with the issue of whether its application to felon disenfranchisement schemes is constitutional. I find no constitutional infirmity in applying Section 2 to felon disenfranchisement statutes, and find unpersuasive the majority's argument that it impermissibly conflicts with Section 2 of the Fourteenth Amendment and raises questions about Congress' civil rights enforcement powers.


[153] First, there is no conflict between the Constitution and the VRA. The majority's finding of a conflict between the VRA and Section 2 of the Fourteenth Amendment stems from its failure to distinguish between felon disenfranchisement laws generally and those that result in racial discrimination. Section 2 of the Fourteenth Amendment merely permits states to disenfranchise felons without suffering a reduction in congressional representation. Nothing in Section 2 of the Fourteenth Amendment grants states unfettered discretion to disenfranchise felons, much less permits felon disenfranchisement on the basis of race. Hunter v. Richardson, 471 U.S. 222, 233 (1985) ("[Section] 2 was not designed to permit the purposeful racial discrimination [in Alabama's criminal disenfranchisement law] . . which otherwise violates [Section] 1 of the Fourteenth Amendment. Nothing in . . . Richardson v. Ramirez suggests the contrary."). Nor does Section 2 preclude Congress from legislatively addressing criminal disenfranchisement laws that have the effect of disenfranchising felons because of their race pursuant to its civil rights enforcement powers. Baker, 85 F.3d at 936-37 (Feinberg, J., writing for an equally divided court) (citing City of Rome v. United States, 446 U.S. 156, 177 (1980) (explaining that Congress can use its enforcement powers to prohibit conduct that does not itself violate the Civil War Amendments, so long as the prohibitions on racial discrimination in voting are appropriate)). The VRA does not undermine a state's "delegated power" to disenfranchise felons, as the majority suggests. Applying the VRA's plain text would not automatically draw into question state disenfranchisement statutes in general. Rather, it would only constrain states from enacting felon disenfranchisement regimes that result in the "denial . . . of the right . . . to vote on account of race or color." 42 U.S.C. § 1973(a) (2005) (emphasis added). There is thus no conflict between the limited parameters that the VRA's Section 2 places on state disenfranchisement laws and the apportionment provisions found in Section 2 of the Fourteenth Amendment.


[154] Second, the majority purports to exclude felon disenfranchisement from coverage under the VRA because of its concern over the lack of a congressional record chronicling constitutional violations stemming from state felon disenfranchisement laws. While the factual evidence of discrimination that Congress considered in enacting Section 2 did not include evidence of racially motivated felon disenfranchisement, there is no requirement that Congress make factual findings as to every potential application of a civil rights statute passed pursuant to its powers to enforce the Fourteenth and Fifteenth Amendments.*fn59 This is particularly so where Congress could not even have begun to identify every potential discriminatory voting qualification that would be subject to the VRA, given the "increasing sophistication with which the states were denying racial minorities the right to vote." Farrakhan, 338 F.3d at 1014; see also S. Rep. No. 89-439, at 10 (1965) ("[E]ven after apparent defeat, resisters seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods.").


[155] Insofar as the majority discerns congressional intent to exclude felon disenfranchisement from coverage under Section 2 of the VRA in subsequent congressional enactments that make provisions for felon disenfranchisement, it again overlooks the distinction between felon disenfranchisement laws generally and the narrow subset of such laws that result in racial discrimination. The simple fact that Congress made provisions for felon disenfranchisement in post-VRA statutes says nothing of whether Congress intended to insulate racially discriminatory disenfranchisement schemes from attack under the VRA. Furthermore, where the majority relies on the legislative history of the "test or devices" standard found in Section 4 of the VRA to locate legislative intent as to the application of Section 2 to felon disenfranchisement, its approach overlooks the fact that because the VRA "contains a number of different provisions each with a different objective . . . the reader cannot, therefore, assume that each of the sections is designed to reach the same objective or is necessarily to be read in the same manner."*fn60 United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 550 (5th Cir. 1980); see also Baker, 85 F.3d at 939 (Feinberg, J., writing for an equally divided court) ("[B]ecause [Sections] 2 and 4 have different purposes, scope and language, the legislative history of [Section] 4(c) is not necessarily applicable to the interpretation of [Section] 2.").


[156] Irrespective of states' authority to disenfranchise felons,*fn61 or the frequency with which states have historically exercised that authority, the Supreme Court has made clear that states cannot use felon disenfranchisement to intentionally discriminate on the basis of race. Hunter, 471 U.S. at 233. In view of Hunter, there can be no reason why Congress cannot act to prevent such discrimination, using its civil rights enforcement powers to reach felon disenfranchisement laws with racially discriminatory results, as it did in Section 2. See Baker, 85 F.3d at 938 (Feinberg, J., writing for an equally divided court); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985) ("[T]he fact that [a statute] has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.").


[157] The majority's focus on the absence of congressional findings as to felon disenfranchisement, and its disregard of the statutory text, eviscerates Congress's intent to give Section 2 the "broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 566-67 (1969). More importantly, the majority's approach renders statutes passed pursuant to Congress' civil rights enforcement powers little more than stale documents, applicable only to those forms and patterns of discrimination evident at the time of passage and explicitly considered by Congress, irrespective of the breadth of the plain statutory text.


[158] Nor does the "plain statement" rule of Gregory v. Ashcroft, 501 U.S. 452 (1991), which counsels the majority's avoidance approach, prevent plaintiffs from proceeding under the VRA. The canon of construction at issue in Gregory holds that where Congress intends to alter the "usual constitutional balance between the states and federal government," it must make its intent to do so unmistakably clear in the statute. Id. at 460-61 (internal citation marks omitted). As Judge Feinberg concluded in his persuasive opinion, however, the Fourteenth and Fifteenth Amendments altered the constitutional balance between the two sovereigns -- not the Voting Rights Act, which merely enforces the guarantees of those amendments. Baker, 85 F.3d at 938 (Feinberg, J., writing for an equally divided court) (citing City of Rome, 446 U.S. at 179 (holding that the Civil War Amendments "were specifically designed as an expansion of federal power and an intrusion on state sovereignty")); see also id. at 942 (Newman, J., concurring).


[159] Moreover, the Supreme Court has explicitly held that the Gregory "plain statement" canon is wholly inapplicable where the statutory language unambiguously applies to a particular state function. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209 (1998). In Yeskey, the petitioners contended that under Gregory, state prisons were not subject to the Americans with Disabilities Act based on the lack of a "plain statement" indicating congressional intent to alter the constitutional balance by regulating state prisons. Id. at 208-09. The Court limited Gregory's plain statement rule, holding it inapplicable because the prison fell squarely within statutory language providing for coverage of "public entities." Id. at 209-10. Similarly, Congress need not have included a "plain statement" on the VRA's application to criminal disenfranchisement statutes, as those statutes fall squarely within the VRA's textual prohibition on any "qualification or prerequisite to voting . . . 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." 42 U.S.C. § 1973(a) (2005).


[160] The only "ambiguity" the majority finds in the VRA is its "conflict" with the Fourteenth Amendment's apportionment clause. Not only does Section 2's prohibition on racially discriminatory felon disenfranchisement schemes fail to conflict with the Fourteenth Amendment, as discussed above, but such a perceived conflict is easily distinguishable from the case of ambiguity within a statute's text, which animated Gregory. See Gregory, 501 U.S. at 469-70; see also Salinas v. United States, 522 U.S. 52, 60 (1997) ("The plain statement requirement articulated in Gregory . . . does not warrant a departure from the statute's terms. The text . . . is unambiguous.").


[161] While the majority would use this "ambiguity" to avoid the result dictated by the VRA's plain meaning and dispose of plaintiffs' claim, I would remand for determination by the trier of fact whether, under the totality of the circumstances*fn62 , plaintiffs' votes were denied "on account of race" in violation of the VRA.


[162] intent "from somewhere in the relevant community", such a requirement appears nowhere in the pre-Bolden iterations of the senate factors and is inconsistent with the Congressional objective of eliminating intent from Section 2. See Thornburg v. Gingles, 478 U.S. 30, 35 (1986) ("[Following Bolden], Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the 'results test,' applied by this Court in White v. Register, 412 U.S. 755 (1973), and by other federal courts before Bolden."); Chishom v. Roemer, 501 U.S. 380, 394 (1991) ("Under the amended statute, proof of intent is no longer required to prove a § 2 violation. Now plaintiffs can prevail under § 2 by demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race. Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into 'the totality of the circumstances.'").



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Opinion Footnotes

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[163] *fn1 Circuit Judge Marcus recused and did not participate in this case. Circuit Judge Kravitch elected to participate in this decision, pursuant to 28 U.S.C. § 46(c).


[164] *fn2 The full text of the provision states:
No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
Fla. Const. art. VI, § 4 (1968).
A felon who has completed his sentence may apply for clemency to have his civil rights restored. Fla. Stat. § 940 (2003). The plaintiffs also allege that Florida's voting rights restoration scheme violates constitutional and statutory prohibitions against poll taxes. Access to the franchise cannot be made to depend on an individual's financial resources. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966). Under Florida's Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. The requirement of a hearing is insufficient to support the plaintiffs' claim. Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court's grant of summary judgment in favor of the defendants on these claims. In doing so, we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.


[165] *fn3 Approximately seventy percent of the plaintiffs class is white.


[166] *fn4 The Clemency Board is made up of the Governor of Florida and members of the Cabinet. The Clemency Board has the power to restore the civil rights of convicted felons, including the right to vote. See Fla. R. Exec. Clemency. The suit also named Florida's county supervisors of elections. Their participation has been abated pending determination of liability.


[167] *fn5 The full text of Section 2 states:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. Const. amend. XIV, § 2.


[168] *fn6 Indeed, throughout history, criminal disenfranchisement provisions have existed as a punitive device. See Harvard Law Review Association, One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1939-42 (2002). When the Fourteenth Amendment was ratified, twenty-nine of thirty-six states had some form of criminal disenfranchisement law. See Richardson, 418 U.S. at 48. Today, forty-eight states have some form of criminal disenfranchisement provision. Although Florida's felon disenfranchisement law may be among the most restrictive, Florida hardly stands alone in its long-standing use of these laws.


[169] *fn7 The 1838 Constitution provided that "[t]he general assembly shall have power to exclude from...the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime." Fla. Const. art VI, § 4 (1838).
The 1845 provision stated:
Be it further enacted, That every person who shall become a candidate for any of the foregoing offices, shall possess the same qualification as that prescribed for a voter, before he shall be eligible to that office. And no person who shall hereafter be convicted of bribery, perjury, or other infamous crime, shall be entitled to the right of suffrage.
1845 Fla. Laws. Ch. 38, art. 2 § 3.


[170] *fn8 In Richardson, the Court briefly explained the process of how the southern states gained readmission to the Union following the Civil War. 418 U.S. at 48-52. The Court observed that many of the new congressionally approved state constitutions contained felon disenfranchisement provisions. Id.


[171] *fn9 Notably, five African-American delegates at the convention explicitly voted for the 1868 criminal disenfranchisement provision.


[172] *fn10 As further evidence of racial discrimination, the plaintiffs argue that the 1868 criminal disenfranchisement provision expanded the category of crimes by reaching all felonies. However, the plaintiffs conceded below that the term "infamous crimes" used in Florida's 1838 disenfranchisement provision was understood at common law to include all felonies. The use of the word "felony" in the 1868 Constitution merely reflected the language that was used in the Reconstruction Act which required the states to grant suffrage to all male citizens, twenty-one years and older "except such as may be disenfranchised for participation in the rebellion or for felony at common law." Act of Mar. 2, 1867, ch. 163, 14 Stat. 428. § 5 (emphasis in original).


[173] *fn11 For example, the plaintiffs cite to the fact that one of the Moderate Republican leaders stated in 1872 that he had kept Florida from becoming "niggerized." A review of the record suggests that this post-convention comment and others cited by the plaintiffs were likely made in reference to the legislative apportionment formula and a provision that circumvented local elections by requiring the governor to appoint county officials. The plaintiffs' own expert conceded that felon disenfranchisement was a relatively minor issue during the 1868 Convention.


[174] *fn12 The only comment possibly referencing the felon disenfranchisement provision was made in 1881. But it is not clear whether this comment specifically referred to the adoption of the disenfranchisement provision in 1868. Moreover, we question the reliability of a single comment made thirteen years after the Convention.


[175] *fn13 In fact, the record indicates that the reason the Moderate Republican Constitution was chosen was because it was signed by a clear majority of the delegates at the convention.


[176] *fn14 To support this argument, the plaintiffs offer incomplete statements from a hodgepodge of legislative materials that were not before the district court at summary judgment. Even if we were to take judicial notice of all of these records, these materials would not help the plaintiffs. The plaintiffs also argue that the district court erred in excluding Richard Scher's expert report on the 1968 constitutional revision. We review evidentiary rulings for abuse of discretion, United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000), and conclude that the district court did not abuse its discretion. Even if admissible, Scher's report would not help the plaintiffs.


[177] *fn15 According to the Florida Supreme Court, persons convicted of offenses enumerated in Section 5 of the 1868 disenfranchisement provision, including a misdemeanor such as "petty larceny" were disenfranchised. State ex. Rel. Jordan v. Buckman, 18 Fla. 267, 270 (1881).


[178] *fn16 The plaintiffs focus on what they call the "automatic felony disenfranchisement provision" and assert that it remained unaffected by the 1968 revision. Presumably, the plaintiffs are referring to Section 4 of the 1868 provision. The plaintiffs' argument is misleading. Section 5 of the 1868 provision was also an "automatic disenfranchisement" provision because it required the legislature to enact disenfranchisement laws. In deleting Section 5 in 1968, the legislature did engage in a revision of what the plaintiffs call "automatic disenfranchisement." Therefore, the "automatic disenfranchisement provision" (which encompassed both sections 4 and 5 in the 1868 provision) was revised in 1968.


[179] *fn17 The committee minutes state:
Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded. Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guardianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed. Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed. After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony." The motion was seconded. Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: 'The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution.' After discussion, Mr. Goodrich's motion failed for lack of a second. The vote was taken on Mr. Pettigrew's motion, but it failed of adoption. Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second. The Committee adopted Section 4 of Article VI with no further amendments.
Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, Feb. 2-3, 1966, at 6-7.


[180] *fn18 Proof of intentional discrimination is required under the Equal Protection Clause. One factor relevant to the intent inquiry is whether the law being challenged has an impact that bears more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Here, Florida's felon disenfranchisement provision did not create a significant disparate impact along racial lines in 1968. Accepting the plaintiffs' estimates for 1968 as true, the felon disenfranchisement denied voting rights to far more whites than African-Americans and decreased the percentage of African-American voters state-wide by less than one quarter of one percent. The plaintiffs' best estimates show that 44,562 white voters and 16,150 black voters were disenfranchised in 1968 due to a felony conviction. Although proportionately more African-American voters were affected, the percentage of eligible African-American voters in the voting age public dropped only from 12.57% in 1967 to 12.32% in 1968. The plaintiffs focus on the present racially disparate impact of the felon disenfranchisement provision, but this amount of disparate impact was not present in 1968 when the provision was enacted. Although disturbing, the present racially disparate impact of the felon disenfranchisement law does not guide our analysis.


[181] *fn19 Unlike the case at bar, in Hunter, there was extensive evidence that racial animus motivated the 1901 disenfranchisement provision. Alabama did not contest this fact. Indeed, at oral argument Alabama's counsel conceded that "I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that." Id. at 230.


[182] *fn20 There is no allegation in the plaintiffs' complaint that the 1968 provision was adopted with the intent to discriminate based on race. Indeed, the plaintiffs stipulated that there is no evidence that legislators in 1968 were concerned with or considered the consequences of the policy along racial lines.


[183] *fn21 The Supreme Court concluded that revision to the provision by state courts, which severed "some of the more blatantly discriminatory" portions of the law, did not purge the provision of its legislative intent. Hunter, 471 U.S. at 232-33. The Supreme Court, however, did not hold that intervening legislative changes to the policy would have been legally insufficient to remove an earlier discriminatory intent.


[184] *fn22 Prior to this case, no expert had ever suggested that the 1868 disenfranchisement provision was motivated by racial discrimination. The plaintiffs' standard establishes an insurmountable burden. As the defendants point out, if the court were to accept the plaintiffs' standard, then the more dubious an allegation of past discrimination in a predecessor provision, the more difficult it becomes for a state to extinguish it because it would be unlikely that the present day legislators would be aware of the past discrimination. The result would be to reverse the presumption that a State's laws are constitutional, and plunge federal courts into far-reaching expeditions regarding the sins of the past in order to question the laws of today.


[185] *fn23 In Fordice, the question was one of what remedy the Constitution requires after a State has already been found liable for violating the Constitution via de jure segregation. By contrast, here the question is one of liability, not remedy.


[186] *fn24 According to the plaintiffs' estimates, in 1968, 3.13% of voting age African-Americans were disenfranchised due to a felony conviction as compared to 1.24% of non African-Americans.


[187] *fn25 In contrast to school desegregation where the racially disparate impact was at its height in the 1950s and 1960s and has decreased since, the felon disenfranchisement rule had very little racially disparate impact in the 1960s and only developed such an effect many years later.


[188] *fn26 Specifically, Congress amended the Voting Rights Act in 1982 in response to the Supreme Court's holding in City of Mobile v. Bolden, 446 U.S. 55 (1980), which required proof of intentional discrimination to establish a violation under Section 2.


[189] *fn27 Two types of discriminatory practices and procedures are covered by section 2: those that result in "vote denial" and those that result in "vote dilution." The plaintiffs'claim here is one of vote denial. Vote denial occurs when a state employs a "standard, practice, or procedure" that results in the denial of the right to vote on account of race. 42 U.S.C. § 1973(a); Burton v. City of Belle Glade, 178 F.3d 1175, 1197-98 (11th Cir. 1999). To prevail, a plaintiff must prove that "under the totality of the circumstances,...the political processes..are not equally open to participation by [members of a protected class]...in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). In making this inquiry, courts consider a non-exclusive list of objective factors (the "Senate factors") detailed in a Senate Report accompanying the 1982 amendments. See S. Rep. No. 97-417, at 28-29, 1998 U.S.C.C.A.N. at 206; Thornburg v. Gingles, 478 U.S. 30, 36 (1986). Because we conclude that Section 2 of the Voting Rights Act does not reach Florida's felon disenfranchisement provision, there is no need to consider the plaintiffs' evidence of alleged discrimination in Florida's criminal justice system which might be relevant under the totality of the circumstances inquiry.


[190] *fn28 The full text, as amended in 1982, states:
(a) 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered. Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their participation in the population.
42 U.S.C. § 1973.


[191] *fn29 When the Fourteenth Amendment was ratified, twenty-nine out of thirty-six states had some form of criminal disenfranchisement provision. Richardson, 418 U.S. at 48. The prevalence of these laws before African-Americans were granted the right to vote indicates that states have historically maintained these laws for race-neutral reasons.


[192] *fn30 The plaintiffs argue that the Fourteenth Amendment's endorsement of felon disenfranchisement laws should not control our analysis because the Fifteenth Amendment does not contain similar language and, in their view, the Fifteenth Amendment repealed § 2 of the Fourteenth Amendment. The plaintiffs cite to no case law to support this bold assertion and we find no merit in this argument. The plain text of the Constitution is clear and we must follow it.


[193] *fn31 Before turning to a canon of statutory interpretation, we must find some level of ambiguity in the words of the statute. Dep't of HUD v. Rucker, 535 U.S. 125, 134 (2002); Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc). Although Section 2 of the VRA does not require proof of intentional discrimination behind the enactment of the challenged voting qualification, Congress's decision to retain the phrase "on account of race or color" makes it unclear as to whether Section 2 would apply to Florida's felon disenfranchisement provision, which is endorsed by the Fourteenth Amendment, applies to felons without regard to race or color (it is particularly telling that over seventy percent of the plaintiffs' class is white), and is administered as one component of a felon's criminal sentence. See Muntaqim, 366 F.3d at 116; Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir. 1994) ("to be actionable, a deprivation of a minority group's right to equal participation in the political process must be on account of a classification, decision, or practice that depends on race or color, not on account of some other racially neutral cause.") (emphasis added). Moreover, the deep division among eminent judicial minds on this issue demonstrates that the text of Section 2 is unclear. See Muntaqim, 366 F.3d at 116-118 ("Unfortunately, it 'is exceedingly difficult to discern what [Section 2] means.'"). Finally, the interpretation of the statute advanced by the dissenters would suggest that currently incarcerated felons may also fall within the scope of the statute. Unless one concedes that Section 2 of the VRA reaches currently incarcerated felons, the interpretation advanced by the dissenters provides an additional reason why the statute is unclear.


[194] *fn32 In saying this, we in no way doubt Congress's authority to enact the VRA nor do we question that, as a general rule, the results test of Section 2 is constitutionally sound. See United States v. Marengo County Comm'n, 731 F.2d 1546, 1556-63 (11th Cir. 1984) (holding that Section 2's results test is constitutional on its face). The only issue here is our concern over whether Congress would exceed its authority if we were to apply Section 2 to Florida's felon disenfranchisement law. Even assuming arguendo that Section 2 of the VRA applies to Florida's provision, a review of the record strongly suggests that the plaintiffs' Section 2 claim would still fail. The plaintiffs would have to demonstrate that specific and relevant racial biases in society interact with the felon disenfranchisement rule, resulting in a denial of the franchise "on account of race or color." Cf. Thornburg v. Gingles, 478 U.S. 30, 47 (1987) (stating that the Voting Rights Act requires that electoral practices interact with social or historical conditions to cause a racial inequality in the political process); Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir. 1994) ("The existence of some form of racial discrimination remains the cornerstone of Section 2 claims..."). We are concerned only with how the state allegedly discriminates against similarly situated persons who have committed felonies. Although the record includes some evidence of a statistical difference in the rate of felony convictions along racial lines, these disparities do not demonstrate racial bias. There are a myriad of factors other than race that may explain the disparity. For example, an individual's socioeconomic status, prior criminal record, gravity of offense, strength of evidence, nature of legal representation, and age of offender might explain the disparity. Moreover, the plaintiffs' own expert found that whites have disproportionately high conviction rates for four of the nine categories of crimes he analyzed. Furthermore, there is no significant racial disparity in the sentences received by convicts with similar guideline scores.


[195] *fn33 As the Court has explained, Congress must (1) "identify conduct transgressing...the substantive provisions" of the amendments and (2) "tailor its legislative scheme to remedying or preventing such conduct." Florida Prepaid Post-secondary Educ. Expense Bd. v. College Savs. Bank, 527 U.S. 627, 639 (1999). In addition to the absence of findings showing that felon disenfranchisement laws are used to discriminate, it is also questionable whether applying Section 2 to reach all felon disenfranchisement laws would be a congruent and proportionate response to the purported problem with these laws. Section 2 applies nationwide to all states and there is no termination date. Given that racial minorities are overrepresented in the felon population, the plaintiffs' theory would cast into doubt most felon disenfranchisement laws in this country. See Boerne, 521 U.S. at 533 (noting that although enforcement legislation need not have "termination dates, geographic restrictions, or egregious predicates...limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under" the Enforcement Clause).


[196] *fn34 The plaintiffs suggest that it is unreasonable to require a specific record of violations because Congress could not identify every form of voting discrimination when it enacted the Voting Rights Act. Given the widespread existence of felon disenfranchisement laws throughout this Nation's history and the fact that many States had such laws on their books when the VRA was enacted, we find no merit in this argument.


[197] *fn35 The plaintiffs concede that Congress compiled no record of constitutional violations with respect to felon disenfranchisement provisions. They contend, however, that Congress's enforcement power is broader when it acts to prohibit discrimination against a suspect class or to protect a fundamental right such as voting. See Tennessee v. Lane, 124 S.Ct. 1978, 1991-92 (2004) (court access); Hibbs, 538 U.S. at 735-36 (sex). Although this is true, the Supreme Court still requires some record of constitutional violations to ensure that Congress had an adequate constitutional basis for prophylactic legislation. Hibbs, 538 U.S. at 735; Lane, 124 S.Ct. at 1992. The plaintiffs also cite to the Court's decision in Hunter v. Underwood as evidence of a record of constitutional violations with regard to felon disenfranchisement provisions. A key problem with this argument is that the Court did not decide Hunter until 1985, three years after the 1982 amendments to the Voting Rights Act. Thus, Congress could not have relied on Hunter when it enacted the amended Section 2 of the Voting Rights Act. Moreover, evidence of a purposefully discriminatory criminal disenfranchisement law in Alabama could not justify congressional regulation of Florida's law, which was enacted for race-neutral reasons.


[198] *fn36 We also note that application of the VRA to Florida's felon disenfranchisement provision could raise federalism concerns in that it significantly alters the constitutionally mandated balance of power between the States and the Federal Government. See Gregory v. Ashcroft, 501 U.S. 452, 457-61 (1991). Whenever Congress intrudes upon "a decision of the most fundamental sort for a [State],...'it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' this balance. Gregory v. Ashcroft, 501 U.S. at 461 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). Congress' intent must be "unmistakably clear in the language of the statute." Id. at 460-61. In Gregory, Missouri state court judges challenged a provision of the Missouri Constitution that required certain judges to retire at the age of seventy as being in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA). After concluding that "the authority of the people of the States to determine the qualifications of their most important government officials...lies at the heart of representative government," the Court found that state judges were not covered by the ADEA because Congress did not make their inclusion unmistakably clear. Id. at 467. As in Gregory, the balance of power between the States and the Federal Government is at issue in this case. If defining the qualifications of important government officials lies at the heart of representative government, then surely defining who decides what those qualifications will be is equally important. Although the States' power in this regard must be exercised in accordance with the Fourteenth and Fifteenth Amendments, § 2 of the Fourteenth amendment establishes an explicit constitutional balance between the States and the Federal Government by giving the States authority to continue the prevalent practice of disenfranchising felons. If Congress wishes to alter the balance of power in this area, its intention must be unmistakably clear.


[199] *fn37 Only the Ninth Circuit has found a felon disenfranchisement provision to be a statutory violation. Farakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). There, the plaintiffs brought a Voting Rights Act challenge to the State of Washington's felon disenfranchisement provision, claiming that racism in the criminal justice system interacted with the state's suffrage laws to deny equal voting opportunities to minorities. Id. at 1020. The Ninth Circuit reversed the grant of summary judgment, but did not specifically address the constitutionality of its interpretation. Logically, that court must have found that the statute covered the challenged provision and that Congress had the constitutional authority to regulate felon disenfranchisement provisions to reach its holding. Nevertheless, the Ninth Circuit did not provide any reasoning for its finding, and thus that court's decision, which is only persuasive authority in our circuit, should not compel our analysis.


[200] *fn38 We recognize that there is no legislative history directly referencing Section 2 of the VRA that mentions felon disenfranchisement provisions. Nonetheless, we find Congress's treatment of these provisions in reference to other sections of the VRA to be persuasive on this matter.


[201] *fn39 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.


[202] *fn40 The one-sided legislative history is buttressed by subsequent Congressional acts. Since 1982, Congress has enacted laws making it easier for states to disenfranchise felons. For instance, in 1993, Congress enacted the National Voter Registration Act (NVRA), Pub. L. No. 103-31, 107 Stat. 77 (1993), which authorizes states to purge felons from voter rolls. 42 U.S.C. § 1973gg-6(a)(3)(B). The Act also instructs federal prosecutors to give written notice to state election officials of persons convicted of felonies. 42 U.S.C. § 1973gg-6(g)(3). In this same Act, Congress sought to eliminate certain practices that dampen minority participation in the electoral process. Although not dispositive, this suggests that Congress did not intend to sweep felon disenfranchisement laws within the scope of the VRA.


[203] *fn41 In addition to the constitutional concerns, there are prudential concerns as well. If we were to accept the plaintiffs' interpretation of the statute, states might lose their ability to exclude felons currently in prison from the franchise. See Farrakhan, 359 F.3d at 1125-1127 (Kozinski, J., dissent from denial of rehearing en banc) (discussing the slippery slope problems of applying the Voting Rights Act to felon disenfranchisement provisions including implications for voter lists, Internet voting, and weekday elections).


[204] *fn42 The Florida constitution provides that "[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights." Fla. Const. art. VI, § 4 (1968).


[205] *fn43 The constitutional question is created by the Fourteenth Amendment's savings clause regarding such provisions. See U.S. Const. amend. XIV, § 2.


[206] *fn44 Those factors are canvassed in the original opinion:
It is axiomatic that at-large and multi-member districting schemes are not per se unconstitutional. Nevertheless, where the petitioner can demonstrate that "its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice," White v. Regester, 412 U.S. [755,] 766, 93 S.Ct. [2332,] 2339, 37 L.Ed.2d [314 (1973)], Whitcomb v. Chavis, 403 U.S. [124,] 149-150, 91 S.Ct. 1858[, 1872, 29 L. Ed. 2d 363 (1971)], such districting schemes are constitutionally infirm.
The Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution. Clearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives. . . . [W]here a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, antisingle shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court's recent pronouncement in White v. Regester demonstrates, however, that all these factors need not be proved in order to obtain relief.
Zimmer, 485 F.2d at 1304-05 (footnotes and internal crossreferences omitted).


[207] *fn45 No one spoke for the Court in Bolden. Although six Justices concurred in the Court's judgment, Justice Stewart wrote only for himself, Chief Justice Burger, and Justices Powell and Rehnquist. For purposes of brevity, I do not pause to make this observation at every reference I make to Justice Stewart's opinion.


[208] *fn46 We can assume from the facts of Burton that the plaintiffs had alleged that the challenged policy in that case had in fact produced a disparate impact to the disadvantage of minority voters. By implication, that allegation was not in itself sufficient to sustain a vote-denial claim, as the court concluded that "Appellants have failed to raise a genuine issue of material fact as to whether they were denied the right to vote on account of race." Burton, 178 F.3d at 1198.


[209] *fn47 Additional support for this proposition can be found by implication in the final proviso of subsection (b): "Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. § 1973(b).


[210] *fn48 See Nipper, 39 F.3d at 1515-24; id. at 1524 (opinion of Tjoflat, C.J., joined by Anderson, J.) ("[A] plaintiff must prove invidious discrimination in order to establish a violation of section 2 of the Voting Rights Act. Specifically, the plaintiff may prove either: (1) discriminatory intent on the part of [state actors] . . . ; or (2) objective factors that, under the totality of the circumstances, show the exclusion of the minority group from meaningful access to the political process due to the interaction of racial bias in the community with the challenged voting scheme."); Solomon v. Liberty County, 899 F.2d 1012, 1032 (11thCir. 1990) (en banc) (Tjoflat, C.J., specially concurring, joined by Fay, Edmondson, Cox, and Hill, JJ.) ("Prior to Bolden, in order to win a voting rights case, a plaintiff had to prove invidious discrimination. This could be done in one of two ways. . . . [T]he invidious discrimination requirement, as well as the two methods of proving it, remained part of section 2 [after amendment]."). Essentially, section 2 reflects an acknowledgment by Congress that even a facially neutral voting scheme can operate as a circuit for the oppression of minority voters by powerful private parties regardless of legislative intent. It maintains a requirement, however, that such an oppression be "on ccount of race or color," and thus that an intent to produce a denial or abridgment of the right to vote on that basis must be present somewhere in the relevant community.
The Supreme Court recently gave similar meaning to the analogous phrase "on the basis of" when it held that Title IX authorizes an implied private right of action based on a claim of retaliation for whistle-blowing. See Jackson v. Birmingham Bd. of Educ., ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___, No. 02-1672, slip op. at 4-5 (Mar. 29, 2005) (defining "retaliation" to be "'on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination" (emphasis added)).


[211] *fn49 Furthermore, notwithstanding the requirement that we view plaintiffs' evidence favorably in light of the procedural posture of this case, their burden is significant in light of the numerous filters and checks built into our criminal-justice system that are independently capable of weeding out cases improperly infused with racial motives. Those checks include grand juries, the right to a trial by a jury (and specifically by a jury whose composition has not been manipulated on the basis of race), an impartial judge supervising the trial, appellate and collateral state-court review, federal habeas review, and clemency.


[212] *fn50 See, e.g., Morse v. Republican Party of Va., 517 U.S. 186, 116 S. Ct. 1186 (1996) (exclusion of protected groups from a nominating convention); White v. Regester, 412 U.S. 755, 93 S. Ct. 2332 (1973) (multi-member districts); Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir. 2002) (restriction on race of candidate); McMillan v. Escambia County, 748 F.2d 1037 (11th Cir. 1984) (majority vote requirement in at-large election primary); United States v. Marengo County Comm'n, 731 F.2d 1546, 1574 (11th Cir. 1984) (at-large elections); DeGrandy v. Wetherell, 794 F.Supp. 1076 (N.D. Fla. 1992) (single-member districting plans); Dillard v. Town of North Johns, 717 F. Supp. 1471 (M.D. Ala. 1989) (selective withholding of candidacy requirement information and forms); Harris v. Siegelman, 695 F. Supp. 517 (M.D. Ala.1988) (refusal to appoint minority registration and election officials); Irby v. Fitz-Hugh, 693 F.Supp. 424 (E.D. Va. 1988) (shift from elective to appointive system); Brown v. Dean, 555 F. Supp. 502 (D.C.R.I. 1982) (location of polling place); Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974) (English-only election system, where residents born in Puerto Rico do not speak, read, write, or comprehend English).


[213] *fn51 Judge Tjoflat argues in his concurrence that a plaintiff's showing of disproportionate effect does not suffice to make out a prima facie case of a § 2 VRA claim. It is far from clear that the language of § 2 VRA claim reinstates the law of the pre-Bolden cases. Congress could have specified in § 2 that some of the White factors were strongly probative of intent, and that proof of "something more than effect" was the sine qua non of a § 2 claim, regardless of whether the proof was direct or indirect. See White v. Regester, 412 U.S. 755, 93 S. Ct. 2332 (1973). Given Congress's express language, however, it is plausible that the amended § 2 was meant to ensure racial minorities equal access to the vote, regardless of intent. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 103--41, 100 S. Ct. 1490, 1519--39(1980) (Marshall, J., dissenting).
Indeed, it is far from clear that the state of pre-Bolden law did not recognize vote dilution claims based solely on effect. See Burns v. Richardson, 384 U.S. 73, 88, 86 S. Ct. 1286, 1294 (1966), (stating that the standard for vote dilution claim is "invidious effect"); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501 (1965) ("It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." (emphasis added)).
In the event that Judge Tjoflat's interpretation is the correct one (that proof of "something more" is required), I do not think that interpretation leads inexorably to the conclusion that a plaintiff's showing of disproportionate effect does not satisfy the summary judgment burden. On the contrary, one of the permissible inferences that can, and must, be drawn from the plaintiffs' showing here is that the disproportionate effect was caused by race.
Thus, I believe that the plaintiffs have carried their summary judgment burden by producing evidence of a disproportionate effect.


[214] *fn52 It bears noting that the Supreme Court has yet to determine whether the "congruence and proportionality" test applies to the Fifteenth Amendment. I assume here that it would. Because the VRA is a congruent and proportional remedy, and therefore well within Congress's enforcement power under the Fourteenth Amendment, an inquiry into the Fifteenth Amendment's scope is not required.


[215] *fn53 The district court found that the "[p]laintiffs have presented to this Court an abundance of expert testimony about the historical background of Florida's felon disenfranchisement scheme as historical evidence that the policy was enacted . . . with the particular discriminatory purpose of keeping blacks from voting." 214 F.Supp.2d 1333, 1338-39 (S.D. Fla. 2002). While ultimately assuming, for the sake of summary judgment, that racial animus motivated Florida's 1868 disenfranchisement law, the majority goes to great lengths to question the sufficiency of plaintiffs' evidence and to offer alternative explanations for each historical fact that suggests a discriminatory motive. I believe that in doing so the majority erroneously views the facts and draws all reasonable inferences, not in favor of the non-moving party, but rather in favor of the state. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).


[216] *fn54 While the majority cites to Burton v. City of Belle Glade, 178 F.3d 1175, 1190 (11th Cir. 1999) (finding that "[a]ppellants can point to no court that has ever applied Fordice outside of the education setting"), this circuit has suggested that Fordice applies in the employment setting, preventing public employers from escaping their constitutional obligations simply by enacting race-neutral policies that institutionalize the effects of prior discrimination. See Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1575 (11th Cir. 1994).


[217] *fn55 The 1868 provision, as amended in 1885, provided that "No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights." Fla. Const. art. VI, § 4 (1885). Following the 1968 re-enactment process the text read, "No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4 (1968). The 1968 changes also eliminated a provision which empowered the legislature to disenfranchise those convicted of certain misdemeanors. Fla. Const. art. VI, § 5 (1885). While the majority emphasizes this revision, the plaintiffs' evidence of racial intent does not hinge on or relate to the eliminated provision. Unlike the plaintiffs in Cotton, whose claim arose from the disenfranchisement of those committing certain "black crimes", plaintiffs' claim of racial bias relates to Florida's disenfranchisement of all felons.


[218] *fn56 While much of the case law interpreting Section 2 of the VRA focuses on the dilution of minority voting strength, see e.g., Holder v. Hall, 512 U.S. 874 (1994); Thornburg v. Gingles, 478 U.S. 30 (1986); Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc), we have recognized that the statute's results test, as determined under the totality of the circumstances, applies by its terms to absolute denials of the vote. See City of Belle Glade v. Burton, 178 F.3d 1175, 1196 (11th Cir. 1999) ("[T]wo distinct types of discriminatory practices and procedures are covered under Section 2: those that result in 'vote denial' and those that result in 'vote dilution.'").


[219] *fn57 In Baker, an en banc panel of the Second Circuit considered whether Section 2 of the VRA applied to New York's felon disenfranchisement law. Because the panel divided equally, 5 to 5, the lower court opinion denying VRA coverage was affirmed. While the majority relies heavily on Muntaqim v. Coombe, 366 F.3d 102 (2d. Cir. 2004), we note that the Second Circuit has granted en banc review of Muntaqim and has yet to issue its decision. See Muntaqim, 396 F.3d 95 (2d. Cir. 2004).


[220] *fn58 See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959) ("Residence Requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347 [1890]) are obvious examples indicating factors which a State may take into consideration in determining the qualification of voters.") (emphasis added).


[221] *fn59 Nor is Congress required to impose temporal or geographic restrictions (whose absence from Section 2 the majority finds so troubling) on statutes passed pursuant to its civil rights enforcement authority. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (upholding a nationwide ban on use of literacy tests without any expiration date or geographical limit, and without congressional fact-finding on the discriminatory use of literacy tests in every state).


[222] *fn60 The majority's citation to United States v. Ward, 352 F.2d 329, 332 (5th Cir. 1965) suffers from the same infirmity. Ward simply notes that disqualification for a felony conviction would not qualify as a "test or device" prohibited in those jurisdictions subject to Section 4(c) of the VRA. Nothing in Ward construes or relates to Section 2 of the VRA, much less its coverage of felon disenfranchisement laws.


[223] *fn61 Of course, I recognize that non-discriminatory felon disenfranchisement statutes, standing alone, raise no equal protection violation. See Ramirez, 418 U.S. at 54-55.


[224] *fn62 Although the district court failed to examine the plaintiffs' evidence under the totality of the evidence standard that governs Section 2 claims, Judge Tjoflat's concurrence argues that a remand is unnecessary as "plaintiffs have been unable to show that whatever denial or abridgment of voting rights resulted from Florida's felon disenfranchisement provision occurred 'on account of race or color.'" First, because plaintiffs are appealing the district court's grant of summary judgment, it is not necessary that they show at this stage that their votes were denied on account of race. Rather, they need only show that genuine issues of material fact remain. That, they have certainly done. As I explained in the panel opinion, as the district court wrongly excluded evidence on several of the "senate factors", plaintiffs can point to evidence on racially polarized voting, prejudice in the criminal justice system, socio-economic disparities, and a history of official discrimination. Johnson, 353 F.3d at 1305-06 and n.25. This evidence goes beyond disparate impact, and when considered in the light most favorable to plaintiffs, permits a conclusion that felon status "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47. Moreover, to the extent that Judge Tjoflat's construction of the "totality of the circumstances" inquiry imposes a requirement that plaintiffs demonstrate discriminatory

Johnson v. Bush, 353 F.3d 1287 (11th Cir. 12/19/2003)

[1] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT


[2] No. 02-14469


[3] 353 F.3d 1287, 2003


[4] December 19, 2003; Opinion vacated July 20, 2004


[5] THOMAS JOHNSON, DERRICK AND RETHOMAS, ET AL., IN THEIR OWN RIGHT AND AS REPRESENTATIVES OF ALL EX-FELON CITIZENS OF FLORIDA, PLAINTIFFS-APPELLANTS, OMALI YESHITELA, PLAINTIFF,
v.
GOVERNOR OF THE STATE OF FLORIDA, JEB BUSH, SECRETARY OF THE STATE OF FLORIDA, KATHERINE HARRIS, ET AL., IN THEIR ROLES AS MEMBERS OF THE CLEMENCY BOARD OF FLORIDA, BEVERLY HILL, ALACHUA COUNTY ELECTION SUPERVISOR, ET AL., DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 00-03542-CV-JLK


[7] Before Barkett and Kravitch, Circuit Judges, and FULLAM*fn1, District Judge.


[8] The opinion of the court was delivered by: Barkett, Circuit Judge


[9] PUBLISH


[10] On September 21, 2000, eight Florida citizens*fn2 ("the Plaintiffs") filed this class action lawsuit on behalf of all Florida citizens who have been convicted of a felony and successfully completed all terms of incarceration, probation, or parole, but who are still ineligible to vote under Florida's felon disenfranchisement law.*fn3 The Florida Constitution provides that "[n]o person convicted of a felony... shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4 (1968). The Plaintiffs sued members of


[11] Florida's Clemency Board in their official capacity*fn4 ("the Defendants"), alleging that this law violates the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to the United States Constitution and Sections 2 and 10 of the Voting Rights Act of 1965, codified as amended at 42 U.S.C. § 1973 et seq. After excluding certain expert testimony, the district court granted summary judgment to the Defendants on all claims, and the Plaintiffs now appeal. We affirm the district court's grant of summary judgment on the Plaintiffs' poll tax claim, but, because there are disputed issues of fact to be resolved, we reverse and remand for further proceedings on the equal protection and voting rights claims.


[12] I. STANDARD OF REVIEW


[13] We review a grant of summary judgment de novo, applying the same legal standards as the district court. Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224-25 (11th Cir. 2002). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluating the argument of the moving party, the district court must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). If the record presents factual issues, or if reasonable minds might disagree about the inferences arising from the facts, then the court should deny summary judgment. Id. On a motion for summary judgment, the district court may not weigh evidence or find facts. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). We review rulings to exclude expert testimony for abuse of discretion. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).


[14] II. EQUAL PROTECTION CLAIM


[15] Observing that Florida is one of only seven states that permanently disenfranchise first-time convicted felons unless they receive clemency, the Plaintiffs allege in their first claim on appeal that (1) the Florida Constitution's provision mandating felon disenfranchisement was adopted in 1868 with the intent to discriminate against African-American voters, (2) the intent of the 1868 framers remains operative despite the provision's reenactment in 1968, and (3) the provision had and continues to have the discriminatory effect intended. As such, the Plaintiffs contend that the provision violates the Equal Protection Clause, which prohibits any State from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. X IV, § 1.


[16] To decide whether a facially neutral law invidiously discriminates on the basis of race in violation of equal protection, an important factor to consider is whether its impact bears more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977); Washington v. Davis, 426 U.S. 229, 242 (1976). In this case, the Plaintiffs have presented evidence that Florida's disenfranchisement of felons has a disproportionate impact on African Americans.*fn5 According to that evidence, Florida currently disenfranchises over 613,000 men and women on account of a prior felony conviction. Doc. 121 at 490. When Florida enacted its most recent constitution in 1968, voting-age African Americans were m ore than twice as likely as non-African Americans to be barred from the vote on account of a prior felony conviction. See Doc. 163 at Addendum. The disparity is even more pronounced today. Approximately 10.5% of voting-age African Americans in Florida over 167,000 men and women are now disenfranchised as ex-felo ns, compared with 4.4% of the non-African-American population. Doc. 121 at 509. More than one in six adult African-American males in Florida are disenfranchised due to a prior felony conviction. Doc. 121 at 509. Moreover, using arrest rates as a proxy for criminal involvement, the Plaintiffs have offered evidence that between 25 and 36 percent of the racial disproportionality in felony convictions and therefore disenfranchisement due to felony convictions cannot be explained by differential involvement in crime by race. Doc. 120 at 20-23. Thus, the Plaintiffs have presented sufficient evidence of racially disproportionate impact both in 1968 and today to support their position on this issue at summary judgment.


[17] However, although relevant, disproportionate impact alone is not sufficient to prove invidious racial discrimination in violation of the Fourteenth Amendment. Davis, 426 U.S. at 242. To prove that a facially neutral law with racially disproportionate effects violates the Equal Protection Clause, the Plaintiffs must show that racially discriminatory intent was a substantial or motivating factor behind its adoption, although it need not be the only factor. See Arlington Heights, 429 U.S. at 264-65 ("[Washington v. Davis] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one.").


[18] The evidentiary inquiry into discriminatory motive is rarely simple: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266. Although a general history of past discrimination "cannot, in the manner of original sin, condemn governmental action that is not itself unlawful," City of Mobile v. Bolden, 446 U.S. 55, 74 (1980), the particular law's historical background is a source of probative evidence of intent. See Arlington Heights, 429 U.S. at 266-67. "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id. at 267. Moreover, proof of discriminatory intent behind a specific policy in the past creates an inference that the impermissible purpose continues into the present, despite the passage of time and even, in some instances, intervening changes to the policy. See Hunter v. Underwood, 471 U.S. 222, 233 (1985) (observing that the original enactment of the Alabama Constitution's criminal disenfranchisement provision was motivated by a desire to discriminate against blacks, continues to have that effect, and therefore violates equal protection, despite intervening events that narrowed the scope of the provision).*fn6


[19] With these principles in mind, we turn to the origins of Florida's current felon disenfranchisement provision. It is true that Florida's earliest constitution, ratified in 1838, empowered the legislature to disenfranchise certain criminal offenders.*fn7 However, the fact that the 1838 Florida Constitution granted this power at a time when African Americans could not vote does not foreclose the Plaintiffs' claim of invidious discrimination in violation of the Equal Protection Clause. A law may be infected by discriminatory intent at any stage, including a later reenactment. See McMillan v. Escambia C county, 638 F.2d 1239, 1246 n.14 (5th Cir. 1981).*fn8 Indeed, the district court found in this case that


[20] Plaintiffs have presented to this Court an abundance of expert testimony about the historical background of Florida's felon disenfranchisement scheme as historical evidence that the policy was enacted originally in 1868 with the particular discriminatory purpose of keeping blacks from voting. Johnson v. Bush, 214 F. Supp. 2d 1333, 1338-39 (S.D. Fla. 2002) (emphasis added).


[21] According to the Plaintiffs' evidence, which consists primarily of the expert report and testimony of one of Florida's leading historians of Reconstruction, Dr. Jerome Shofner,*fn9 Florida refused to extend civil and political rights to blacks immediately following the Civil War. For example, the State denied blacks the right to vote in its 1865 constitution, rejected the Fourteenth Amendment in 1866, and established additional crimes, including a new, expansive type of larceny, in order to "address the altered condition of the colored race." Do c. 121 at 430-32.


[22] In response, as a condition of readmission to the Union, Congress required Florida to extend voting rights regardless of race, pursuant to which Florida convened its 1868 constitutional convention. Id. at 433-34. Initially dominated by Radical Republicans supporting black enfranchisement, this convention first approved a constitution (1) lacking any provision disenfranchising voters on the basis of criminal convictions, (2) restricting ex-Confederate white suffrage, and (3) providing for equal population legislative districts. Id. at 439. Subsequently, however, a competing faction of Moderate Republicans, who sought the support of white ex-Confederate Floridians opposed to black suffrage, took control of the convention from the Radical Republicans. Id. at 439-40. Maintaining frequent contact with white ex-Confederate leaders, the reconstituted convention established a legislative apportionment scheme that diminished representation from densely populated black counties. It also proposed a new suffrage article automatically disenfranchising those persons convicted of infamous crimes while restoring suffrage to ex-Confederates. Id. at 440-41. Then, at the last moment, the delegates substituted yet another, arguably even more stringent suffrage article that (1) changed that disenfranchisement provision's scope from infamous crimes to all felonies; (2) inserted a provision, which had existed in the 1838 Constitution but had been eliminated by the Radical Republicans, granting the legislature power to disenfranchise persons convicted of bribery, perjury, and other infamous crimes; and (3) included in that enumerated list the crime of larceny, which the 1865 legislature had expanded to address the emancipation of blacks. Id. at 432, 441-42.


[23] In the end, this alternative version of the constitution prevailed.*fn10 Shortly afterward, one of the Moderate Republican leaders boasted that he had kept Florida from becoming "niggerized."*fn11 Doc. 122 at 791, 869. One of the 1868 convention delegates also reported in 1881 that the criminal disenfranchisement provisions were being used to reduce the number of black voters, Doc. 121 at 444, an effect that the Plaintiffs argue continues to date. Based on the different versions of the constitution, the last minute amendments and vote changes, and the general historical context, Dr. Shofner concluded that intentional racial discrimination had motivated the Florida Constitution's criminal disenfranchisement provisions as passed in 1868. See Doc. 121 at 426-28; Doc. 142 at 3-10.


[24] Accepting the Plaintiffs' evidence, a reasonable fact-finder could conclude that the discriminatory animus behind the felon disenfranchisement provision's 1868 adoption satisfies the Plaintiffs' initial burden of showing that race was a substantial or motivating factor behind the constitutional provision here challenged. Arlington Heights, 429 U.S. at 266. Once the Plaintiffs have made this threshold showing, "the burden shifts to Appellees to prove that, at the time of the discriminatory act, the same decision would have been made for a legitimate reason." Burton, 178 F.3d at 1189 (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)) (emphasis added). The summary judgment record here does not, however, establish that the Defendants have shown as a matter of law that the constitutional convention would have passed the felon disenfranchisement provision in 1868 absent a racially impermissible purpose. Thus, were the 18 68 Constitution Florida's most recent, our present inquiry could end here. The case would be controlled directly by the Supreme Court's unanimous opinion in Hunter v. Underwood, 471 U.S. 222 (1985), which found that the Alabama C onstitution's criminal disenfranchisement provision, passed in 1901, was motivated by racially discriminatory intent, would not have been enacted at that time without the racially discriminatory intent, and therefore violated the Equal Protection Clause.


[25] However, Florida ratified a new constitution in 1968. Although the provision explicitly disenfranchising all felons remained substantively unchanged, the 1968 Constitutional Revision Committee did make certain textual modifications. As amended in 1885, the felon disenfranchisement provision had read:


[26] No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.


[27] Fla. Const. art. VI, § 2 (1885). After the 1968 revision, the provision reads:


[28] No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.


[29] Fla. Const. art. VI, § 4 (1968).*fn12 The summary judgment record reflects no evidence that racial considerations were discussed by the participants in the 1968 constitutional revision process when they passed the felon disenfranchisement provision. Thus, had the 1968 provision been Florida's first enactment of such a felon disenfranchisement rule, our analysis would look first to the Supreme Court's opinion in Richardson v. Ramirez, 418 U.S. 24 (1974), which held that felon disenfranchisement laws are not per se unconstitutional.


[30] This case, however, fits neither the Hunter nor the Richardson model. The 1868 convention did not have the final word on the disenfranchisement provision. Nor did the provision originate in 1968. Thus, accepting as true that the provision's purpose in 1868 included impermissible intentional racial discrimination, we must consider the legal effect to be accorded the retention of this provision in 1968.


[31] The Plaintiffs argue that when discriminatory intent motivated a prior enactment, the State bears the burden of showing that, to avoid perpetuating the impermissible purpose, the later reenactment had a legitimate, non-discriminatory basis. The Defendants counter that the State bears no burden and, moreover, that the original provision has no legal effect in light of a later reenactment.


[32] Although neither this Court nor the Supreme Court has yet confronted this question in the context of felon disenfranchisement, courts have considered the legal effect of race-neutral policies that serve to perpetuate intentional racial discrimination in other contexts. For example, courts have considered equal protection challenges when asserted to invalidate laws, policies, and practices arising from a history of de jure segregation. In these cases, when original discriminatory intent has been demonstrated, the State has been required to show that the original taint has been purged and even, in some circumstances, that the State has taken affirmative steps to remove the effects of the discrimination.*fn13


[33] Specifically, in holding that States have an affirmative duty to dismantle the vestiges of past de jure segregation in higher education, the Supreme Court concluded that the State of Mississippi had not satisfied its constitutional burden through "the adoption and implementation of race-neutral policies alone," United States v. Fordice, 505 U.S. 717, 729 (1992), because such policies did not stem the effects of the past discrimination and less segregative alternatives existed. See id. at 743. Linking intent to the S tate's burden, Justice Thomas further observed in Fordice that,


[34] given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time. ... Thus, if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear clear enough to presume conclusively that the State has failed to disprove discriminatory intent.


[35] Id. at 747 (Thomas, J., concurring).


[36] Applying the standards articulated in Fordice to hold that Alabama had also not met its constitutional obligation with respect to its prior de jure segregated university system, this Circuit made clear in Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994), that "[o]nce it is determined that a particular policy was originally adopted for discriminatory reasons, the Fordice test inquires whether the current policy is 'traceable' to th e original tainted policy, or is 'rooted' or has its 'antecedents' in that original policy." Id. at 1550. When that is established, the burden of proof lies with the State to show that it has dismantled the past discrimination "root and branch." Id. at 1540, 1552 (quotation omitted); see also Fordice, 505 U.S. at 731 ("If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects... the State has not satisfied its burden of proving that it has dismantled its prior system."). In Knight, drawing heavily on the "causation principles articulated in Fordice," we therefore framed our analysis of facially race-neutral policies enacted against an originally discriminatory backdrop in terms of "break[ing] the causal chain." Knight, 14 F.3d at 1550.


[37] These cases required the State to dismantle a prior discriminatory education system by eradicating its effects. While their particular remedies might not be completely applicable here, we do derive guidance from their rationale, which demands that the State demonstrate a break in the causal chain of discrimination to assure compliance with the Equal Protection Clause. Surely if a State has an affirmative duty to dismantle the vestiges of past de jure segregation in the education context, it must bear some burden when the right to vote a citizen's most basic right in a democracy has been impermissibly abrogated.*fn14 At a minimum, as Justice Thomas noted, once the State has impermissibly discriminated on the basis of race through a particular law and continuing discriminatory effects have been established, then the State must disavow any connection to the law's original discriminatory purpose by showing that it was later reenacted for independent, non-discriminatory reasons.


[38] The application of this principle in discrimination law appropriately draws on fundamental principles of causation and intent prevalent throughout the legal system. In both criminal law and the law of torts, for example, the legal effects of a wrongful action are held to reach through subsequent events to encompass remote but foreseeable harms. See, e.g., Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928); United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979). As evidenced in Knight, this principle of legal causation is often conceptualized by reference to a metaphorical "chain of causation" that links events through time. See, e.g., United States v. Rodriguez, 279 F.3d 947, 952 (11th Cir. 2002). Though it generally stretches intact and inertially between events, the causal chain may be severed by a sufficiently independent intervening action.*fn15 This concept of a "new in tervening action," rooted in common sense, is frequently used by courts to analyze whether events that occur subsequent to an initial action operate to break the causal chain. See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (recognizing the causal chain between an application for a warrant and an improvident arrest because "§ 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions"); United States v. Waksal, 709 F.2d 653, 663 (11th Cir. 1983) ("No significant intervening event purged the taint of the illegal restraint on appellant's liberty."); United States v. C antu, 230 F.3d 148, 158 (5th Cir. 2000) (King, J., concurring) (examining "whether there were any intervening circumstances sufficient to break the causal chain thus dissipating the taint of the initial illegality") (internal quotations omitted).


[39] A new action or event is only considered to be sufficiently "intervening" if it is made freely, deliberately, and knowledgeably. See, e.g., Hart & Honoré, Causation in the Law at 136. Thus, the actions of uninformed agents who unwittingly further the principal's purposes are generally deemed inadequate to break the causal chain. Cf. Rodriguez, 279 F.3d at 952 (noting that it is a "basic principle of criminal law that foreseeable negligent acts of a third party do not sever the chain of causation"); Rest. (2d) Torts § 452 (stating that a third person's failure to prevent harm is not a superceding cause of the harm). In contrast, the exercise of independent judgment by a later actor may suffice to sever the connection to the original w rongful action. See, e.g., Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999) ("It is well settled that the chain of causation between a police officer's unlawful arrest and a subsequent conviction and incarceration is broken by the intervening exercise of independent judgment."); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988) (stating that presenting all facts to an independent intermediary will break a chain of causation, while misdirecting the intermediary "by omission or commission perpetuates the taint of the original official behavior"). Applied in the context of an originally discriminatory legislative action, these principles direct us to consider whether a subsequent reenactment was made with sufficient knowledge and purpose to be deemed a new intervening event, thereby breaking the chain of invidious intent.


[40] In Hunter, the Supreme Court looked to the original intent and found that certain intervening events were insufficient to break the causal chain of discrimination. In that case, the Court held that a criminal disenfranchisement law is unconstitutional if "its original enactment was motivated by a desire to discriminate against blacks on account of race and the [law] continues to this day to have that effect." 471 U.S. at 233. In so holding, the Court rejected Alabama's argument that its current interest in disenfranchising certain criminal offenders legitimated its originally discriminatory disenfranchisement provision. Rather than accept a non-discriminatory justification post-hoc, the Court focused on the State's original intent, observing that "such a [legitimate] purpose simply w as not a motivating factor of the 1901 convention." Id. at 232.


[41] The Hunter Court further noted that:


[42] At oral argument in this Court, the appellants' counsel suggested that, regardless of the original purpose of § 182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as assault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimes--felonies and moral turpitude misdemeanors--are acceptable bases for denying the franchise. Without deciding whether § 182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.


[43] Id. at 233 (emphasis added). In Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998), the Fifth Circuit relied upon this statement to conclude that Hunter "left open the possibility that by amendment, a facially neutral provision... might overcome its odious origin." *fn16 On that basis, the Fifth Circuit upheld, despite its discriminatory origin, a criminal disenfranchisement provision subsequently reenacted with modifications by the State of Mississippi. While we agree that Hunter left open the possibility that reenactment may be sufficient in some circumstances to "break the causal chain," Knight, 14 F.3d at 1550, we disagree with the Fifth Circuit's failure to consider whether such reenactment must be accompanied by an independent, non-discriminatory purpose.


[44] Based on all of the foregoing, we conclude that an original discriminatory purpose behind Florida's felon disenfranchisement provision establishes an equal protection violation that persists with the provision unless it is subsequently reenacted on the basis of an independent, non-discriminatory purpose. Thus, if an impermissible discriminatory intent is found to be a motivating factor behind the 1868 enactment of the provision, and the Defendants do not show that it would have been enacted at that time absent the impermissible discriminatory intent, the Defendants have the burden to show that the State knowingly and deliberately reenacted it for a non-discriminatory reason.


[45] At this stage of the proceedings, when view ed in the light most favorable to the Plaintiffs, the record before the district court does not show that the 1968 Constitution gave effect to an independent, non-discriminatory purpose in keeping the felon disenfranchisement provision.*fn17 Although the record reflects that the fiveperson Subcommittee on Suffrage and Elections "discussed" the provision at one of its twelve meetings, there is no evidence regarding the substance of that discussion nor that the Constitutional Revision Committee as a whole or the legislature ever discussed the provision.*fn18 While it is possible to speculate from the minutes that Subcommittee members discussed non-discriminatory reasons for disenfranchising felons, one could equally conclude that the Subcommittee regarded the felon disenfranchisement provision as a legacy of previous constitutions that did not need to be revisited in substance.*fn19 Retaining an originally discriminatory provision in order to preserve continuity, or out of deference to tradition, or simply due to inertia does not amount to an independent purpose sufficient to break the chain of causation between the original racial animus and the provision's continuing force as law. Thus, if the 1968 constitutional drafters kept a long-standing provision essentially intact for any of these reasons, then the discriminatory animus of which that provision was born, if ultimately proved as a matter of fact, would suffice to establish unconstitutional racial discrimination in violation of the Fourteenth Amendment.


[46] Accordingly, because the Plaintiffs' showing of racial animus in the 1868 provision creates a genuine issue of material fact as to whether it w as adopted with a discriminatory purpose, and because on this record the Defendants have not met their burden of showing that this provision was reenacted in 1968 with an independent, non-discriminatory purpose, summary judgment was improperly granted. We therefore reverse and remand to the district court for further proceedings on the equal protection claim.*fn20


[47] III. VOTING RIGHTS C LAIM


[48] Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended, prohibits the use of any "voting qualification or prerequisite to voting or standard, practice, or procedure... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or colo r." 42 U.S.C. § 1973(a).*fn21 In 1982, Congress amended the Act to provide explicitly that a violation of Section 2


[49] is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.


[50] 42 U.S.C. § 1973(b).


[51] The 1982 amendments were passed in response to the Supreme Court's opinion in City of Mobile v. Bolden, 446 U.S. 55 (1980), which held that proof of intentional discrimination w as necessary to establish violations of both the Fifteenth Amendment and Section 2 of the Voting Rights Act. The 1982 amendments instead established a "results" test "to make clear that proof of discriminatory intent is not required to establish a violation of Section 2." S. Rep. No. 97-417, at 2 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 179; see also United States v. Marengo County Comm'n, 731 F.2d 1546, 1557 (11th Cir. 1984) (describing the enactment of the 1982 amendments).


[52] The new subsection (b) "provides that the issue to be decided under the results test is whether the political processes are equally open to minority voters." S. Rep. at 2. In explaining the amended standard, the 1982 Senate Judiciary Committee majority report lays out a broad, non-exclusive list of factors to consider ("the Senate factors"), which include any history of voting-related official discrimination, the extent to which minority group members bear the effects of discrimination in other areas which hinder their ability to participate effectively in the political process, and the extent to which the State has used voting practices that tend to enhance the opportunity to discriminate against the minority group.*fn22 Id. at 28-29.


[53] Guided by the relevant Senate factors, courts must then evaluate a Section 2 claim "based on the totality of circumstances." 42 U.S.C. § 1973(b). In other words, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47 (1986).*fn23 Although different factors have varying relevance depending on the particular practice at issue, see S. Rep. at 28, it is clear that a proper examination cannot focus solely on one explanation for the vote denial or abridgement but must involve a "[s]earching practical evaluation of the past and present reality" of the challenged voting structure, Gingles, 478 U.S. at 45, and its interaction with social and historical conditions, id. at 47 n.8, including the "searching and meaningful evaluation of all the relevant evidence." Southern Christian Leadership Conference of Ala.v. Sessions, 56 F.3d 1281, 1293 (11th Cir. 1995) (en banc). Each situation is particular, and as a result, each inquiry is fact-intensive. See Gingles, 478 U.S. at 79 ("This determination is peculiarly dependent upon the facts of each case, and requires an intensely local appraisal of the design and impact of the contested electoral mechanism s.") (intern al citations omitted).


[54] In this case, the Plaintiffs challenge the adverse summary judgment on their Section 2 vote denial claim, arguing that the district court erred by failing to consider the evidence they presented in accordance with the totality of the circumstances standard delineated above. We agree. In granting summary judgment, the district court simply concluded that "it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment."


[55] Johnson, 214 F.Supp. 2d at 1341. This conclusion, however, only begs the question. The proper question here is whether felon status "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."*fn24 Gingles, 478 U.S. at 47. Indeed, in Hunter, the Supreme Court found that Alabama's criminal disenfranchisement law could not constitutionally be used as a tool for discrimination on the basis of race, even though the plaintiffs had been convicted of crimes.*fn25 Thus, the fact that the Plaintiffs have been convicted of crimes "was not a bar to the plaintiffs claims in Hunter v. Underwood, and should play no different role in the case at hand." Farrakhan v. Locke, 987 F.Supp. 1304, 1313 (E.D. Wash. 1997) ("Farrakhan I"), aff'd by Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003) ("Farrakhan III") (agreeing that disenfranchised felons may state a claim of vote denial under Section 2 of the Voting Rights Act). We therefore find that the district court erred by relying at summary judgment solely on the fact of the Plaintiffs' criminal convictions rather than looking to the totality of the circumstances.


[56] In addition, the district court relied on the Eastern District of Washington's opinion in Farrakhan v. Locke, No. 96-0076, 2000 U.S. Dist. LEXIS 22212 (E.D. Wash. 2000) ("Farrakhan II"), which granted summary judgment on the basis that discrimination in the criminal justice system was insufficient to establish that Washington's felon disenfranchisement law violated Section 2 of the Voting Rights Act. That case, however, was reversed, and the appellate court concluded that


[57] [t]o the extent that racial bias and discrimination in the criminal justice system contribute to the conviction of minorities..., such discrimination would clearly hinder the ability of racial m inorities to participate effectively in the political process, as disenfranchisement is automatic. Thus, racial bias in the criminal justice system may very well interact with voter disqualifications to create the kind of barriers to political participation on account of race that are prohibited by Section 2, rendering it simply another relevant social and historical condition to be considered w here appropriate.


[58] Farrakhan III, 338 F.3d at 1020. We agree with this analysis and conclude that the district court erred in disregarding the Plaintiffs' evidence of discrimination in the criminal justice system at the summary judgment stage. The weight due to this evidence is a disputed question for the fact-finder at trial.*fn26


[59] Finally, we note that the Plaintiffs presented evidence bearing on a number of relevant Senate factors, including, inter alia, (1) a history of official discrimination by the State of Florida touching on the right to vote, including but not limited to the racially discriminatory origins of blanket felon disenfranchisement in the state; (2) the use of voting practices or procedures that enhance opportunities for discrimination against the minority group; and (3) the effects of discrimination in other areas that affect felon disenfranchisement, such as education, employment, and health.*fn27 When taken in the light most favorable to the Plaintiffs, a fact-finder could conclude that under the totality of the circumstances test, this evidence demonstrates intentional racial discrimination behind Florida's felon disenfranchisement as well as a nexus between disenfranchisement and racial bias in other areas, such as the criminal justice system, in violation of the Voting Rights Act.


[60] For the foregoing reasons, summary judgment should not have been granted on the Plaintiffs' Section 2 vote denial claim.*fn28


[61] IV. POLL TAX/WEALTH DISCRIMINATION CLAIMS


[62] Access to the franchise cannot be made to depend on an individual's financial resources. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966). As the Second Circuit has stated, "[t]he focal question is whether [the State], once having agreed to permit ex-felons to regain their vote and having established administrative machinery for this purpose, can then deny access to this relief, solely because one is too poor to pay the required fee." Bynum v. Conn. Comm'n on Forfeited Rights, 410 F.2d 173, 175-76 (2d Cir. 1969) (sending challenge to Connecticut's $5 fee for filing an application for restoration of rights to a three-judge district court).


[63] In this case, however, Florida's Rules of Executive Clemency do not deny access to the franchise to those too poor to pay restitution.*fn29 Under the Rules, restoration of civil rights, including the franchise, can still be granted to felons who cannot afford to pay restitution. We are not convinced that requiring a hearing under certain circumstances, including the failure to pay restitution, is sufficient to support the Plaintiffs' claim. Thus, because the current Rules of Executive Clemency do not deny access to the restoration of the franchise based on ability to pay, we affirm the district court's judgment that no violation of the constitutional and statutory prohibitions against poll taxes exists here.*fn30


[64] V. CONCLUSION


[65] We therefore AFFIRM the district court's order granting summary judgment to Defendants on the poll tax claim. We REVERSE and REMAND the equal protection and vote denial claims.


[66] AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.


[67] KRAVITCH, Circuit Judge, dissenting:


[68] I disagree with the majority's analysis of both the Equal Protection and Voting Rights A ct claims. Therefore, respectfully I dissent.


[69] I. The Equal Protection Claim


[70] The text of the Fourteenth Amendment explicitly allows states to disenfranchise convicted felons, U.S. CONST. amend. XIV, § 2, and the Supreme Court unambiguously has determined that a state's decision to permanently disenfranchise such citizens, in itself, is not an Equal Protection violation. Richardson v. Ramirez, 418 U.S. 24, 53-55, 94 S.Ct. 2655, 2670-71, 41 L.Ed.2d 551 (1974). O f course, a state may not intentionally use a facially-neutral measure to discriminate on the basis of race. Washington v. Davis, 426 U.S. 229, 239-4, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). This prohibition includes enacting a felon disenfranchisement provision in order to deprive one racial group of its right to participate in the political process. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 1923, 85 L.Ed.2d 222 (1985). But the State of Florida's decision to bar felons from voting should not, in itself, cast suspicion on the motives of the state. The dispositive question in this case is whether the plaintiffs have alleged such facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement statute. In my view, the plaintiffs do not do so, and thus I would affirm the district court.


[71] A. Background


[72] The State of Florida's decision to disenfranch ise felons has a long history, beginning before the Civil War. In its 1838 Constitution, Florida first denied voting rights to those convicted of crimes. After the Civil War, Florida was required to change its Constitution for readmittance to the Union and subsequently held two constitutional conventionsone in 1865 and the other in 1868. The 1865 Constitution was inadequate because it did not extend the franchise to African Americans. The 1868 Constitutional Convention cured this defect. Delegates to both conventions decided to disenfranchise felons, a decision explicitly left to their discretion by the Fourteenth Amendment. One hundred years later in 1968, the State of Florida comprehensively revised its Constitution and again decided to deny felons the right to vote. Any felon, however, who has completed his sentence, including any orders of restitution, m ay apply for clemency to have his civil rights restored.*fn31 Fla. Stat. § 940 (2003).


[73] B. The Constitutional Revision Process


[74] There is no question that the felon disenfranchisement provision was based on a non-racial rationale when it was first included in the Florida Constitution in 1838. At that time, the right to vote was only extended to white males. The plaintiffs allege that the decision to retain the disenfranchisement provision in the 1868 Constitution was motivated by a desire to minimize black voting power. Because it is not the role of this court to make factual determinations, we view the evidence in the light most favorable to the plaintiffs.*fn32 We need not assume, however, that racial animus was the sole rationale. Indeed, as the plaintiffs' expert acknowledges, at least five African American delegates to the 1868 Convention, of the sixteen African American delegates voting, supported this provision, presumably not for racially-discriminatory reasons.


[75] In 1968, Florida again reexamined and revised its Constitution and enacted the current felon disenfranchisement provision. The 1968 Constitution was passed after the state had engaged in four stages of deliberation, including debate and revision by the Suffrage and Elections Committee, review by the Florida Constitutional Revision Committee, approval from both houses of the legislature and finally affirmation by a state-wide referendum.


[76] There is no allegation in the complaint that the 1968 Constitutional Convention was infected with any racial animus, and the plaintiffs did not present any evidence that racial animus was present in this process.*fn33 As the m ajority opinion states, the "summary judgment record reflects no evidence that racial considerations were discussed by the participants in the 1968 constitutional revision process when they passed the felon disenfranchisement provision."


[77] Florida's revision of its constitution in 1968 distinguishes it from some other states with a history of racial discrimination. For instance, the State of Alabama enacted a felon disenfranchisement provision in 1901 with the specific intent of disenfranchising African American voters, and unlike Florida, Alabama never revisited the provision through the legislative process. Hunter, 471 U.S. at 233, 105 S.Ct. at 1922.


[78] C. Equal Protection Analysis


[79] A facially-neutral provision violates the Equal Protection Clause if adopted with the intent to discriminate against a racial group. Washington v. Davis, 46 U.S. at 239, 2040 S.Ct. at 2047. Here, there is no allegation in the complaint that the 1968 Constitution was adopted with the intent to discriminate based on race.


[80] 1. Applying Hunter v. Underwood


[81] In Hunter v. Underwood, the Supreme Court examined head-on the issue of felon disenfranchisement. 471 U.S. at 223, 105 S.Ct. at 1917. The Court determined that the Alabama Constitution violated the Equal Protection Clause because it was adopted in 1901 as a means of minimizing the political power of its African American population. Id. at 228-230, 105 S.Ct. at 1920-21. There, Alabama's elected representatives neither altered the provision nor reenacted it in a political atmosphere free of racial bias. Rather, all of the amendments to the constitution were the result of judicial action. Id. at 233, 105 S.Ct. at 1922.


[82] In Hunter, the Supreme Court, affirming the decision of this court, established an easily applied test for finding Equal Protection Clause violations in the context of felon disenfranchisement. Id. at 227-28, 105 S.Ct. at 1920. (1985). That test is as follows:


[83] Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: "[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.


[84] Id. (citation omitted).


[85] Under this analysis, we apply a two-step test to determine whether a particular felon disenfranchisement provision violates the Equal Protection Clause. First, we examine whether there is any proof that racial discrimination was a substantial or motivating factor in the state's decision to deny the right to vote to felons. Second, w e determine whether the state can show that the provision would have been enacted without the racially discriminatory motive.


[86] For the purposes of appeal, we assume, without deciding, that the plaintiffs have demonstrated that there was some racial animus in the 1868 Constitutional process. This, however, does not lead to the conclusion that race was a motivating factor in the political process which resulted in the 1968 Constitution, a hundred years later.


[87] We next examine whether Florida would have chosen to disenfranchise felons if legislators did not have a discriminatory motive. In Hunter, this was a more complicated analysis because it required a counter-factual scenario: Given that Alabama only legislatively addressed this issue once, what would legislators have done if they did not have a discriminatory motive? 471 U.S. at 228-29, 105 S.Ct. at 1920. Here, we have the luxury of not having to delve into complex counter-factual scenarios because Florida simplified the analysis by returning to the issue in 1968.


[88] Florida's 1968 Constitution permits us to determine whether the state would have chosen to disenfranchise felons if the impermissible motive was absent. The results are plain: There is no allegation of racial discrimination in 1968 and legislators decided to include a felon disenfranchisement provision in the revised constitution after consideration by two committees. This decision was then affirmed by both houses of the legislature and by popular referendum.


[89] Thus, Florida's provision is not a violation of the Equal Protection Clause under the standard adopted by the Supreme Court in Hunter. Florida's reenactment of the felon disenfranchisement provision in the 1968 Constitution conclusively demonstrates that the state would enact this provision even without an impermissible motive. Reenactment is exactly the measure that we would require Florida to take if we did find an Equal Protection Clause violation, and thus the state has already cured the provision on its own initiative. The state, therefore, has met its burden as a matter of law by undertaking the precise measure the plaintiffs are seeking.*fn34


[90] Moreover, Florida's provision is arguably not even subject to this type of intent analysis because the felon disenfranchisement provision did not create a disparate impact along racial lines in 1968. Accepting the plaintiffs' best estimates for 1968 as true, the felon disenfranchisement provision denied voting rights to far more whites than African Americans and decreased the percentage of African-American voters state-wide by less than one quarter of one percent.*fn35 Although proportionately m ore African American were affected, the percentage of eligible African Americans voters in the voting age public in 1968 dropped only from 12.53% to 12.32% due to felony convictions. The majority focuses on the present racially disparate impact of the felon disenfranchisement provision, but this disparate impact was not present in 1968.


[91] 2. The Majority's Standard


[92] The majority establishes a different standard than the one announced in Hunter. Instead of examining whether legislators would have enacted the felon disenfranchisement provision if they did not have an impermissible motive, the majority remands the case to the district court and requires that the state prove that it "knowingly and deliberatively reenacted it for a non-discriminatory reason." This standard is beyond w hat is required by Hunter because it invalidates faciallyneutral provisions enacted by legislators who are not alleged to have discriminatory motives.*fn36 In effect, th e majority requires that the State of Florida show that it considered the alleged racial discrimination in the 1868 Constitution and that it "knowingly and deliberately" decided to re-en act the provision for other reasons in 1968. The present law does not require this level of proof. Florida's current provision is constitutional becauseas the majority agreesthere is no evidence of any racial b ias in the re-enactment. See also Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) (holding that a felon disenfranchisement provision did not violate the Equal Protection Clause because the current provision was adopted without discriminatory intent.).


[93] A. Justifying Heightened Review


[94] The majority argues that Florida's 1968 facially-neutral provision, passed without any evidence of racial discrimination, should be deemed a violation of the Equal Protection Clause. To support its position, the majority relies on United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), which involved a challenge to Mississippi's system of higher education. Fordice, however, involved an extreme case of recent state discrimination. There, Mississippi actively resisted removing the segregated system of education in the 1960s, failed to fund even limited educational reform in 1969, and was sued by the United States and private plaintiffs in 1975 for failing to comply with the Equal Protection Clause. Id. at 722-25, 112 S.Ct. at 2732-34. The issue in Fordice was whether the state's facially-neutral education system, which was passed only after the state was required to integrate its school by court order, was valid under the Equal Protection Clause if the system maintained the racially disparate impact that de jure segregation had created. The Supreme Court found that M ississippi's actions were not consistent with the Equal Protection Clause if Mississippi made no effort to remove the discriminatory effects of de jure segregation. The present case and Fordice are simply not analogous.


[95] First, Florida's 1968 provision did not continue the adverse disparate impact of earlier de jure measures, which makes the present case entirely different than the situation in Fordice. At the time the Mississippi legislature adopted its education system, the system of higher education was almost completely racially segregated. Id. at 722, 112 S. Ct. at 2732. In Fordice, therefore, the Supreme Court was concerned that Mississippi was attempting to perpetuate its racially segregated education system, established in a time of de jure segregation, through a facially-neutral provision. In contrast, when Florida adopted its felondisenfranchisement provision in 1968, the racial effects of the provision were minor. In 1968, Florida legislators and voters were not attempting to extend the effects of de jure discrimination with a facially-neutral provision because there was no adverse impact to extend by passing the felon disenfranchisement provision.*fn37 Florida's provision simply did not maintain a pattern of discrimination the way Mississippi's provision did. Consequently, the heightened review used in Fordice is not appropriate here.


[96] Second, the current Florida provision was passed one hundred years after allegedly intentional discrimination occurred, whereas Mississippi's provision was passed shortly after the end of de jure segregation in education. Needless to say, the Florida legislators who passed the 1868 Constitution and the 1968 Constitution were not the same people. In Fordice, however, the legislators, who refused to desegregate the Mississippi schools without a court order in the 1960s, most likely overlapped significantly with the legislators who passed the facially-neutral education system in the 1970s. Given the proximity in time between Mississippi's intentional discrimination and the facially-neutral provision in education, we should have a healthy skepticism that the facially-neutral provision was indeed neutral.


[97] Certainly, the Mississippi legislators who voted for the facially-neutral provision understood the history of racial segregation in education and the likely racial effects of their new education system. But this healthy skepticism should not be applied here, because it is not reasonable to assign any impermissible motives held by the 1868 Florida legislators to the 1968 legislators who voted for the present felon disenfranchisement provision.


[98] Third, Florida has a valid public policy reason for disenfranchising felons, where Mississippi did not have a sound justification for its education policies. The majority quotes Justice Thomas's concurrence in Fordice, but Justice Thomas specifically states that this heightened review is only applicable when there is no sound public policy justification for the state law, stating: "A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification." Fordice, 505 U.S. at 746, 112 S.Ct. at 2745 (emphasis added). Where Mississippi schools did not have valid educational justification for maintaining segregated schools, Florida has a legitimate reason for denying the vote to felons.


[99] Finally, we note that this circuit has been reluctant to extend the education line of cases to other areas. As this court stated in Burton v. City of Belle Glade, school desegregation jurisprudence is unique and thus difficult to apply in other contexts. 178 F.3d 1175, 1190 (1999) (stating "In the first place, Appellants can point to no court that has ever applied Fordice outside of the education setting. Indeed, given the unique nature of school desegregation, we hesitate to extend Fordice to a property annexation case.") M oreover, as argued earlier, th ere is specific precedent from this court and the Supreme Court dealing with felon disenfranchisement. See Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655 (1974), Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916 (1985), Beachum v. Braterman, 300 F. Supp. 182, 183 (1969), aff'd 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969) (finding by a three judge panel that Florida's decision to disenfranchise felons was not a violation of the plaintiff's equal protection or due process rights). Because these cases establish clear standards by which to judge state action, we are bound by precedent and need not go into other areas of possibly analogous law.


[100] B. Sufficient Deliberation


[101] The majority argues that Florida has not yet demonstrated that it has "broken the causal chain" between the 1868 Constitution and the current provision. It maintains that the 1968 constitutional revisions to this provision were not sufficient because legislators did not adequately deliberate over this issue. But the record belies this conclusion: The provision was subject to significant deliberation.


[102] The 1968 Constitution's felon disenfranchisement rule was first actively considered by the Suffrage and Elections Committee. The record reflects that the committee discussed the provision, debated proposed changes, and ultimately decided to adopt the present provision, which is different from the 1868 provision.


[103] The committee also considered an alternative motion that would have eliminated the disenfranchisement rule to felons released from incarceration.*fn38 After discussion, the alternative motion failed. The new constitution was then accepted by the full committee, approved by both legislative houses, and affirmed by a statewide referendumall without any allegation of racial bias. Although reasonable people m ay disagree over the wisdom of the policy choice, the provision certainly received sufficient deliberation.


[104] 3. Wisdom of the Policy


[105] Several of the amici argue that, as a policy matter, felons should be enfranchised, particularly those who have served their sentences and presumably paid their debt to society. But this is a policy decision that the United States Constitution expressly gives to the state governments, not the federal courts. U.S. CONST. amend. XIV, § 2. Florida already has legislatively reexamined this provision since 1868 and affirmed its decision to deny felons the vote. Federal courts cannot question the wisdom of this choice.


[106] For the above reasons I would affirm the district court's grant of summary judgment on this count.


[107] II. The Voting Rights Act Claim


[108] I also respectfully dissent from the majority's remand of the Voting Rights Act claim. In my view, the Voting Rights Act does not apply to felon disenfranchisement provisions. The majority's interpretation of the scope of the Voting Rights Act creates grave questions as to the constitutionality of the Voting Rights A ct and is contrary to Congress's statements regarding its coverage.


[109] A. The Scope of the Voting Rights Act


[110] Florida's discretion to deny the vote to convicted felons is fixed by the text of § 2 of Fourteenth Amendment, which states:


[111] [W]hen the right to voteàis denied to any of the male inhabitantsàor in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.


[112] U.S. Const. amend. XIV, § 2 (emphasis added).*fn39 Interpreting the Voting Rights Act to deny a state this discretion, as the majority does, creates a constitutional problem because such an interpretation allows a congressional statute to trump the text of the Constitution.


[113] It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to create a constitutional question unless there is a clear statement from Congress endorsing this understanding. As the Supreme Court stated in DeBartolo Corp. v. Florida Gulf Coast Trades Council:


[114] [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the C court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804), and has for so long been applied by this Court that it is beyond debate....This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts w ill therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.


[115] 485 U.S. 568, 575, 108 S.Ct. 1392, 1397-98, 99 L.Ed.2d 645 (1988). Thus when we analyze the scope of the Voting Rights Act, we should first address whether one interpretation presents grave constitutional questions where other interpretations would not, and then examine whether the latter interpretation is clearly contrary to Congressional intent. Id.


[116] Here, the majority's interpretation creates a serious constitutional question by interpreting the Voting Rights Act to trump the text of the Fourteenth Amendment. *fn40 Congress undoubtedly has the constitutional authority to prohibit many measures that are not explicitly prohibited in the Fourteenth Amendment, but this enforcement power arguably does not extend to prohibiting constitutionally protected practices. This is not to say that a state's felon disenfranchisement provisions can never be challenged. As pointed out above and as the decision in Hunter confirmed, states cannot use felon disenfranchisement provisions to discriminate intentionally on the basis of race. 471 U.S. at 233, 105 S.Ct. at 1923. Thus, the plaintiffs have a remedy if the state's provision violates the Equal Protection Clause. Id. It is a different matter, however, when a statute limits a state's delegated power in contravention of the Fourteenth Amendment's text.


[117] The majority opinion cites Hunter for the proposition that the felon disenfranchisement provisions can be challenged under the Voting Rights Act. But in Hunter, the Supreme Court dealt exclusively with the Equal Protection Clause and did not discuss the Voting Rights Act. The Supreme Court has never given any indication that the felon disenfranchisement provisions can be challenged under the Voting Rights Act. To the contrary, in Richardson v. Ramarez, the Supreme Court explained that felon disenfranchisement provisions are different from other state franchise rules because they are permitted by the Fourteenth Amendment's express language. 418 U.S. 24, 54, 94 S.Ct. 2655, 2671(1974).


[118] For the majority's analysis of the Voting Rights Act to be correct, we must look for a clear statement from Con gress that it intended such a constitutionallyquestionable result. DeBartolo, 485 U.S. at 575, 108 S.Ct. at 1397. Instead of a clear statement from Congress that the majority's interpretation was intended, the legislative history indicates just the opposite n that Congress did not intend the Voting Rights Act to apply to felon disenfranchisement provisions.*fn41


[119] 1. Congressional Statements in 1965


[120] The scope of the Voting Rights Act is limited. Congress first passed the act in 1965 to prevent states from discriminating against minorities in voting.*fn42 The act was intended to cover voting tests and other practices, such as districts designed by states to minimize minority voting. See Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir. 1999). The Senate and House reports make clear, however, that Congress did not intend the Voting Rights to cover felon disenfranchisement provisions. The reports indicate that tests for literacy or good moral character should be scrutinized, but felon disenfranchisement provisions should not. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2562. The only place where legislators addressed felon disenfranchisement provision was with regard to Section 4, where the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute's coverage, stating:


[121] The third type of test or device covered is any requirement of good moral character. This definition would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.


[122] Id.


[123] Likewise the House Report also states that the Voting Rights Act was not designed to prohibit felon disenfranchisement:


[124] This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.


[125] 1965 U.S.C.C.A.N. 2437, 2457. These reports indicate that neither house of Congress intended to include felon disenfranchisement provisions within the statute's scope. These are the only references to felon disenfranchisement made in reports to the 1965 act.


[126] Furthermore, this court's predecessor previously decided that the 1965 act did not cover a state's decision to exclude felons from voting. In United States v. Ward, the former Fifth Circuit held that the Voting Rights Act prohibited Louisiana from imposing any literacy test or other qualification on voter registration, but found that the act did not extend to felon disenfranchisement rules. 352 F.2d 329, 332 (5th Cir. 1965).*fn43 There, the court issued an order enjoining the state from applying the voting tests, but explicitly exempted felony convictions from the order. The court ordered that the state cease


[127] ...requiring any applicant for voter registration in Madison Parish, as a precondition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in Section 4(c) of the Voting Rights Act of 1965, Public Law 89-110, 79 Stat. 438-439, i.e., any requirement (including the 'good character' requirement specified in Article VIII, Section 1(c) of the Louisiana Constitution and Title 18, Section 32, of the Louisiana Code, except to the extent that these provisions permit disqualification for conviction of a felony).


[128] Id. at 332 (emphasis added).


[129] 2. Congressional Statements in 1982


[130] Congress most recently amended the Voting Rights Act in 1982 in response to the Supreme Court's decision in Bolden v. City of Mobile, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), in an attempt to clarify the standard for finding statutory violations. In revising the statute, Congress intended to depart from the intent-based standard of the Supreme Court's Equal Protection jurisprudence and establish an effects-based standard. S. Rep. 97-417, 15-17, 1982 U.S.C.C.A.N. 177, 192-94 (1982). After the 1982 amendment, a state practice could survive Equal Protection Clause scrutiny but fail Voting Rights Act scrutiny.


[131] Although the 1982 amendments w ere significant in terms of the legal test applied to practices covered by the act, they are not relevant here because the challenged provision remains outside the scope of the Voting Rights Act. Neither the plain text nor the legislative history plainly declares Congress's intent to extend the Voting Rights Act to felon disenfranchisement provisions.*fn44 The Senate Report, which goes into great detail on legislative intent, made no mention of felon disenfranchisement provisions.*fn45 Although it is conceivable that certain legislators may have wanted the Voting Rights Act to encompass felon disenfranchisement provisions, we should not assume that Congress intended to produce a statute contrary to the plain text of the Fourteenth Amendment without a clear statement. DeBartolo, 485 U.S. at 575, 108 S.Ct. at 1397.


[132] In short, I believe the majority adopts a constitutionally questionable interpretation of the Voting Rights Actone in which the statute prohibits a practice that the Fourteenth Amendment explicitly permits. As a matter of statutory construction, we should avoid such an interpretation. Moreover the case for rejecting the majority's interpretation is particularly strong here, where Congress has expressed its intent to exclude felon disenfranchisement measures from Voting Rights Act scrutiny.*fn46


[133] Accordingly, I dissent from the decision to remand and would affirm the district court on this count also.



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Opinion Footnotes

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[134] *fn1 Honorable John P. Fullam, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.


[135] *fn2 Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams-Carpenter, Jau'dohn Hicks, and John Hanes. On January 17, 2001, the district court dismissed Yeshitela as a plaintiff because his civil rights had been restored.


[136] *fn3 Thus, this case does not involve those persons who are still incarcerated, who are on probation or parole, or who have not completed every requirement or condition of such probation or parole.


[137] *fn4 The Governor of Florida and the Cabinet collectively constitute the Clemency Board, which has the power to restore civil rights, including the right to vote. See Fla. R. Exec. Clemency. The suit also named Florida's county supervisors of elections. Their participation has been abated pending determination of liability.


[138] *fn5 Because on summary judgment we must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor, Burton, 178 F.3d at 1187, this opinion recounts facts as presented by the Plaintiffs unless otherwise noted. Some facts are contested, and we take no position as to which, if any, of these facts may ultimately be proved at trial.


[139] *fn6 See also United States v. Fordice, 505 U.S. 717, 747 (1992) (Thomas, J., concurring) (observing that "discriminatory intent does tend to persist through time"); McMillan v. Escambia County, 638 F.2d 1239, 1249 (5th Cir. 1981) ("If the system was unconstitutional in its inception and if it continues to have the effect it was designed to have, then the pure hearts of current council members are immaterial."); Kirksey v. Bd. of Supervisors, 554 F.2d 139, 148 (5th Cir. 1977) (en banc) ("[N]othing in [Washington v. Davis or Arlington Heights] suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action."); Brown v. Bd. of Sch. Comm'rs of Mobile County, 542 F. Supp. 1078, 1090 (S.D. Ala. 1982) (looking to the intent behind an 1876 statute, rather than its 1919 reenactment, in the absence of evidence that the latter had changed the relevant features of the election plan), aff'd. 706 F.2d 1103 (11th Cir. 1983) (explicitly affirming the district court on all issues), aff'd. 464 U.S. 105 (1983); Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 266, 270 n.22 (1979) (implying, in an equal protection claim, that the purpose of the current Massachusetts veterans preference law may be located in its 1896 origins despite a number of amendments, including eliminations and extensions); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1356 (4th Cir. 1989) (suggesting that the 1971 retention, with no debate, of a particular provision of the Virginia Constitution did not cleanse it of its original discriminatory intent).


[140] *fn7 The 1838 Constitution included two references to criminal disenfranchisement. Article VI, § 4 read: The General Assembly shall have power to exclude from every office of honor, trust or profit, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime. Fla. Const. art VI, § 4 (1838). Article VI, § 13 read: Laws shall be made by the General Assembly, to exclude from office, and from suffrage, those who shall have been or may thereafter be convicted of bribery, perjury, forgery, or other high crime, or misdemeanor; and the privilege of suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon, from power, bribery, tumult, or other improper practices. Fla. Const. art. VI, § 13 (1838).


[141] *fn8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.


[142] *fn9 Dr. Shofner, who spent more than thirty years studying and teaching about Florida history and the Reconstruction era, has written ten books on those subjects and, additionally, has published two scholarly pieces focusing on Florida's 1868 constitutional convention. Doc. 122 at 906-07; Doc. 121 at 457.


[143] *fn10 The two provisions for criminal disenfranchisement enacted in 1868 read: No person under guardianship non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of felony be qualified to vote at any election unless restored to civil rights.... Fla. Const. art. XIV, § 2 (1868). The Legislature shall have power and shall enact the necessary laws to exclude from every office of honor, power, trust, or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime.... Fla. Const. art. XIV, §4 (1868). In 1885, these provisions were renumbered as article VI, §§ 4 and 5, respectively, but the language remained largely unchanged except for the addition of "by a court of record" to the new § 4.


[144] *fn11 There is no evidence in the record that this boast referred specifically to the 1868 Constitution's criminal disenfranchisement provisions. But taking the evidence we do have in the light most favorable to the Plaintiffs, a reasonable fact-finder could conclude that in 1868, certain political factions did whatever they could to prevent African Americans from being able to vote, including inserting both the better-known discriminatory voter apportionment and appointment provisions as well as the lesser-known criminal disenfranchisement provisions into the constitution with the intent to achieve that goal. It is at least as likely that the 1872 boast referred to the whole 1868 Constitution, including criminal disenfranchisement, as that it was limited only to the other, more obviously discriminatory provisions.


[145] *fn12 The 1968 Constitution also deleted the provision that had read: The Legislature shall have power to, and shall, enact the necessary laws to exclude from every office of honor, power, trust or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime.... Fla. Const. art.VI, § 5 (1885).


[146] *fn13 See, e.g., Fordice, 505 U.S. at 728; Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537-38 (1979) (noting the "affirmative duty [to desegregate] imposed by our cases" and stating that "[g]iven intentionally segregated schools in 1954,... the Board [of Education] was thereafter under a continuing duty to eradicate the effects of that system"); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458 (1979) (stating that once official segregation has been shown, "[u]nder the Fourteenth Amendment and the cases that have construed it, the Board [of Education]'s duty to dismantle its dual system cannot be gainsaid"); Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437 (1968) (holding that a Virginia school board did not meet its affirmative burden to "take[] steps adequate to abolish" its past de jure racial segregation when it adopted a facially race-neutral policy of school choice, because it was ineffective in accomplishing actual desegregation).


[147] *fn14 Cf. Reynolds v. Sims, 377 U.S. 533, 562 (1964) ("[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights."). The dissent insists that felon disenfranchisement and higher education should be subject to different standards of review because Mississippi had no valid educational justification for maintaining segregated schools. However, the Plaintiffs allege that Florida intended to categorize voters on the basis of race, not criminal activity. Just as there is no constitutionally legitimate reason to segregate schools on the basis of race, even if the facially neutral policies used to maintain such segregation such as school choice programs or admissions standards might also have non-racial justifications, there is no constitutionally legitimate reason to deny the right to vote to felons or anyone else on the basis of race. Additionally, although felon disenfranchisement does not apply only to African Americans, racially discriminatory policies can be deliberately overinclusive. Poll taxes, for example, surely disenfranchised some whites as well as blacks even though they were discriminatorily intended to impact blacks. It is impermissible to have an over-inclusive felon disenfranchisement law intended to keep blacks from voting, even if it keeps certain white convicted criminals away from the polls as well. See also infra note 23.


[148] *fn15 This concept is captured by the traditional doctrine of novus actus interveniens. See, e.g., H.L.A. Hart & A.M. Honoré, Causation in the Law 73-74 (1985).


[149] *fn16 With its language, the Hunter Court left equally open the converse possibility that prior discriminatory purpose could be perpetuated through an amendment enacted pursuant to a nondiscriminatory legislative process.


[150] *fn17 The dissent implies that Florida had a legitimate policy reason in 1968 for continuing to disenfranchise felons. We find no evidence in the summary judgment record of such a legitimate motive in 1968. Although a few courts have suggested non-racially discriminatory public policy rationales for disenfranchising felons, see Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967); Washington v. State, 75 Ala. 582, 585 (1884), others have questioned those rationales. See, e.g., Richardson, 418 U.S. at 79-82 (Marshall, J., dissenting); Farrakhan v. Locke, 987 F. Supp. 1304, 1312 (E.D. Wash. 1997); Stephens v. Yeoman, 327 F. Supp. 1182, 1188 (D.N.J. 1970). See also Afi S. Johnson-Parris, Note: Felon Disenfranchisement: The Unconscionable Social Contract Breached, 89 Va. L. Rev. 109 (2003); Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wisc. L. Rev. 1045 (2002); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box," 102 Harv. L. Rev. 1300 (1989) (all challenging the validity and/or constitutionality of the assumptions behind those rationales). Moreover, the United States appears unique in the world community in the manner in which it permits felon and ex-felon disenfranchisement. See Jamie Fellner & Marc Mauer, Losing the Right to Vote: The Impact of Felon Disenfranchisement Laws, The Sentencing Project & Human Rights Watch Report (Oct. 1998), http:// www.hrw.org/reports98/vote/usvot98o-04.htm#0112_273. For example, Canada recently declared its prisoner disenfranchisement statute unconstitutional, regarding the law as a violation of a fundamental democratic right. See Suavé v. Canada (Chief Electoral Officer), 2002 S.C.C.D.J. 2883, 2002 S.C.C.D.J. LEXIS 81 (Oct. 31, 2002). In any case, the debate over the soundness of felon disenfranchisement or its rationales is irrelevant in the absence of any evidence that the framers of the 1968 Florida Constitution considered any such independent, non-discriminatory reasons for retaining felon disenfranchisement. Cf. Hunter, 471 U.S. at 232 (rejecting Alabama's argument that it had a legitimate interest in its criminal disenfranchisement law because that interest was not shown to be a motivating factor in 1901).


[151] *fn18 The relevant portion of the Subcommittee minutes reads as follows: Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded. Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guardianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed. Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed. After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony." The motion was seconded. Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goorich's [sic] motion failed for lack of a second. The vote was taken on Mr. Pettigrew's motion, but it failed adoption. Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second. The Committee adopted Section 4 of Article VI with no further amendments. Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, Feb. 2-3, 1966, at 6-7.


[152] *fn19 Cf. Richardson, 418 U.S. at 44 ("The Journal of that Committee's proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2.").


[153] *fn20 On remand, the parties shall be given the opportunity to engage in additional discovery to address any other evidence pertaining to the motivations behind the passage of the felon disenfranchisement provision in 1868 and 1968. An assessment of the drafters' purposes would, among other things, look to the historical context in which the provision was considered, the discussions held at that time, and the changes effectuated. See Arlington Heights, 429 U.S. at 266-67. Eliminating only one part of an odious provision while maintaining other parts that continue to have racially discriminatory effects, for example, might perpetuate rather than eliminate the taint. Cf. Hunter, 471 U.S. at 233 (narrowing changes by the courts to Alabama's criminal disenfranchisement law did not cure the equal protection violation). In addition, we find meritorious the Plaintiffs' claim that evidence from their expert Richard Scher should be considered as well. Although the district court originally granted the Defendants' motion in limine to exclude Scher's evidence because it would not be helpful to the trier of fact, both parties at summary judgment relied on Scher's expert report and testimony for almost all of their evidence as to the 1968 constitutional revision process. Moreover, the district court cited to Scher's evidence in the order granting summary judgment. See Johnson v. Bush, 214 F.Supp. 1333, 1339 (S.D. Fla. 2002). We also observe that Scher's proposed testimony about the 1968 constitutional revision process, drawing upon his specialized knowledge of information located in archives in Tallahassee, sheds light on the sensitive factual inquiry into discriminatory intent, see Arlington Heights, 429 U.S. at 266, 268, an inquiry distinct from the practice, familiar to courts and lawyers, of using legislative history to discern the intent of the legislature as it bears on a law's meaning.


[154] *fn21 The full text of subsection (a) states: 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, or in contravention of the guarantees set forth in section 4(f)(2) [42 U.S.C. § 1973b(f)(2)], as provided in subsection (b). 42 U.S.C. § 1973(a).


[155] *fn22 The enumerated Senate factors also include the extent of racially polarized voting, the exclusion of minority group members from candidate slating processes, the use of racial appeals in political campaigns, the extent to which members of the minority group have been elected to public office in the jurisdiction, the tenuousness of the State's interest in the particular practice, and evidence that elected officials are unresponsive to the needs of minority group members. S. Rep. at 28-29.


[156] *fn23 Although much of the legislative history of Section 2 and most of the cases focus on the abridgement of the right to vote by dilution of minority voting strength, see, e.g., S. Rep. at 29-31; H.R. Rep. No. 97-227, at 18, 30 (1981); Holder v. Hall, 512 U.S. 874 (1994); Thornburg v. Gingles, 478 U.S. 30 (1986); Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc); Solomon v. Liberty County, 899 F.2d 1012 (11th Cir. 1990) (en banc); see also Frank R. Parker, The "Results" Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va. L. Rev. 715, 762 (1983), the statute's "results test" as determined by the totality of the circumstances also applies by its plain language to claims of absolute denial of the vote. See 42 U.S.C. § 1973; see also S. Rep. at 30 ("Section 2 remains the major statutory prohibition of all voting rights discrimination."). We have not yet explicated the meaning of the results test in the context of a vote denial claim, but this Court has explicitly recognized the applicability of the totality of the circumstances inquiry and implicitly accepted the relevance of some of the evidence described by the "Senate factors." See Burton, 178 F.3d at 1197-98; see also Farrakhan v. Washington, 338 F.3d 1009, 1015 n.11 (9th Cir. 2003) ("Farrakhan III") ("We have held that the totality of the circumstances approach applies to both vote dilution and vote denial claims."); Mississippi State Chapter, Operation PUSH v. Allain, 674 F.Supp. 1245, 1263 (N.D. Miss. 1987) ("While the Committee report makes reference to dilution, the court is of the opinion that the same language and analysis is applicable to this voter registration case.").


[157] *fn24 Similarly, in other cases, otherwise neutral categories or classifications have interacted with social and historical conditions so as to function as proxies for race. For example, a literacy test, by itself a constitutional race-neutral voting qualification, may violate the Voting Rights Act when it is used to deny African Americans the right to vote, see South Carolina v. Katzenbach, 383 U.S. 301, 333-34 (1966) (upholding the Voting Rights Act's ban on literacy tests although a facially fair literacy test is not per se unconstitutional). In addition, facially race-neutral poll taxes and grandfather clauses have been declared unconstitutional when used as proxies to deny African Americans the franchise. See Guinn v. United States, 238 U.S. 347, 364-67 (1915) (striking down exemption from literacy tests for any "person who was, on January 1, 1866, or any time prior thereto, entitled to vote... and [any] lineal descendant of such person" because "the standard itself inherently brings [a racially exclusionary] result into existence"); United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966) (three-judge district court) (finding Alabama's poll tax unconstitutional because its purpose and effect was to discriminate on the basis of race).


[158] *fn25 In reaching its conclusion, the district court relied in part on the Sixth Circuit's opinion in Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986), aff'g 605 F.Supp. 802, 813 (M.D. Tenn. 1985). However, Wesley failed to adequately consider the Supreme Court's approach to racially discriminatory disenfranchisement, noting erroneously that "the disenfranchisement of felons has never been viewed as a device by which a state could discriminatorily exclude a given racial minority from the polls." Wesley, 791 F.2d at 1262 (affirming the trial court's conclusion that disenfranchising felons has never been linked to discriminatory attempts to prevent racial minorities from voting, despite Hunter's holding the previous year). See also Baker v. Pataki, 85 F.3d 919, 940 n.10 (2d Cir. 1996) (in banc) (Feinberg, J., concurring) (rejecting Wesley's conclusions).


[159] *fn26 In this regard, we also find that Professor Richard Engstrom's expert testimony on racially polarized voting in Florida should not have been excluded on the grounds that it is not relevant to this type of vote denial claim. Although the weight to be given it is left to the factfinder, the evidence is relevant to the consideration of the totality of the circumstances, including the extent of racial bias in the community, and the interaction of those circumstances. Moreover, as this case is being remanded for further consideration and discovery, the arguments pertaining to a delayed disclosure of the testimony of James Ginger and the five Florida Supreme Court Racial and Ethnic Bias Study Commission reports on which he relied are moot, as the State now has the opportunity to respond.


[160] *fn27 For example, the record includes evidence of Florida's history of official discrimination in elections; the disproportionate impact of felon disenfranchisement on African Americans; racial bias in the criminal justice system, see Doc. 142 at 17-18 (describing the conclusion of the Florida Supreme Court's Racial and Ethnic Bias Study Commission that "differential treatment results, at least in part, from racial and ethnic bias on the part of enough individual police officers, prosecutors, and judges to make the system operate as if it intended to discriminate against non-whites"); the historical use of criminal justice in Florida as a tool to subjugate African Americans; and the impact of past racially discriminatory criminal justice policies on current disenfranchisement. The Plaintiffs also cite to evidence of the effects of discrimination in education, such as differences in graduation rates, higher education degrees, and per capita income; the impact of those effects on criminal arrest rates and on the restoration of rights after serving a sentence; and the tendency of the eligibility requirements for the restoration of rights to exclude more African Americans.


[161] *fn28 The dissent argues that our interpretation of the scope of the Voting Rights Act creates serious constitutional problems because it allows the Voting Rights Act to "trump" the text of Section 2 of the Fourteenth Amendment, which expressly permits states to deny the right to vote "for participation in rebellion, or other crime." However, notwithstanding the text of Section 2, states clearly do not have the right to intentionally disenfranchise felons on the basis of race. See Hunter, 471 U.S. at 233 ("[W]e are confident that § 2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial discrimination attending the enactment and operation of [Alabama's criminal disenfranchisement law] which otherwise violates § 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez, supra, suggests the contrary."). Thus, although Congress might not be able to ban all state criminal disenfranchisement laws, it may certainly exercise the power granted to it under Section 5 of the Fourteenth Amendment to enforce statutorily the constitutional prohibition against racially discriminatory criminal disenfranchisement. See Baker, 85 F.3d at 936-37 (Feinberg, J., concurring) (writing for one-half of the evenly-split in banc Second Circuit); cf. Marengo County Comm'n, 731 F.2d at 1550, 1563 (holding that Section 2 as amended in 1982 is a constitutional exercise of congressional enforcement power under the 14th and 15th Amendments). Moreover, insofar as the dissent is assuming that Section 2 of the Fourteenth Amendment expressly authorizes Florida to disenfranchise convicted felons, even where its manner of doing so disproportionately impacts racial minorities, we question this interpretation, for which the dissent provides no authority. We think it better to interpret this constitutional provision to permit Florida and other states to disenfranchise convicted felons in a racially neutral mannerthat is, in a manner that is neither racially motivated nor produces racially disproportionate effects. Viewed in this light, the Constitution's express permission to states to disenfranchise felons is compatible with the scope of the Voting Rights Act, and no constitutional problem arises by assuming that Congress may use its enforcement power to proscribe felon disenfranchisement policies that have racially discriminatory effects. Cf. Marengo County Comm'n, 731 F.2d at 1563 ("Section 2 [of the Voting Rights Act] does not conflict with or contract any right protected by the Constitution, and nothing in the Constitution either explicitly or implicitly prohibits a results standard for voting rights violations."). Finally, we note that the legislative history and precedent discussed by the dissent pertain only to Section 4 of the Voting Rights Act, 42 U.S.C. § 1973b, which addresses "tests or devices" used to determine voter eligibility in certain states and political subdivisions, and not to Section 2. Our predecessor court observed that the Voting Rights Act of 1965 "contains a number of different provisions each with a different objective, that for its comprehension critical examination of each section is essential and that the reader cannot, therefore, assume that each of the sections is designed to reach the same objective or is necessarily to be read in the same manner." United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 550 (5th Cir. 1980). See also Baker, 85 F.3d at 939 (Feinberg, J., concurring ) ("Because §§ 2 and 4 have different purposes, scope and language, the legislative history of § 4(c) is not necessarily applicable to interpretation of § 2."). Section 4's prohibition of specified "tests or devices" brings with it a host of additional requirements for states and political subdivisions covered by the section. In contrast, Section 2 applies nationally to prohibit a broader range of practices than those "tests or devices" defined in Section 4, but only when their use results in the denial or abridgement of the right to vote on account of race. It is perfectly conceivable that Congress might wish to exclude a particular practice from section 4's "test or device" label to avoid attaching to it the additional requirements, yet still intend to prohibit that practice when the evidence shows that its use results in the denial of the right to vote on account of race.


[162] *fn29 The district court erroneously observed that "It is not Plaintiffs' right to vote which payment of a victim restitution is being conditioned but rather it is the restoration of his civil rights which is being conditioned." Johnson, 214 F. Supp. 2d at 1343. As one of the civil rights to be restored, clearly the right to vote depends on any conditions that apply to the restoration of civil rights in general.


[163] *fn30 In doing so, we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.


[164] *fn31 There are conditions to the restoration of civil rights, including conviction of fewer than three violent crimes.


[165] *fn32 Nonetheless, I question the majority's description of the record. In particular, the majority states that one white delegate to the 1868 Constitutional Convention stated several years later that he had helped prevent the state from being "niggarized." A white politician running for office in 1872 made this despicable comment in reference to the entire 1868 Constitution. Although this is evidence of an unfortunate and indefensible racial animus in nineteenth-century Florida politics, there is no evidence that the comment was in reference to the felon disenfranchisement provision. It is far more likely that the comment referenced other provisions in the 1868 Constitution, such as the voter apportionment system. The plaintiffs' expert states voter apportionment and the appointment (rather than election) of many political posts were the most significant and well-known issues of 1868 Constitutional Convention, while felon disenfranchisement was a relatively minor issue. In fact, the plaintiff's expert acknowledged that the historical record is mixed on the felon disenfranchisement provision. The 1868 Constitution's felon sufferage provisions garnered the support of several of the Radical Republicans, including four African American delegates who consistently voted with the Radical Republicans. Doc. 122 at 875.


[166] *fn33 The plaintiffs stipulate that there is no evidence that legislators were concerned with or considered the consequences of the policy along racial lines.


[167] *fn34 The majority states that Florida must prove that it would have enacted this provision in 1868 without a discriminatory motive to withstand summary judgment. This would be the case if the 1868 provision was being challenged. In the current litigation, however, the plaintiffs are challenging the 1968 provision and they have presented no evidence that this provision, passed one hundred years later, was motived by discriminatory intent.


[168] *fn35 Doc. 163-Addendum. The plaintiff's best estimates show that 44,562 white voters and 16,150 African American voters were disenfranchised in 1968 due to a felony conviction.


[169] *fn36 The majority cites Hunter for the proposition that "proof of discriminatory intent behind a specific policy in the past creates an inference that the impermissible purpose continues into the present despite the passage of time and even, in some instances, intervening changes to the policy." (emphasis added). In Hunter, the Supreme Court found that revision to the state provision by state courts, which severed "some of the more blatantly discriminatory" portions of the law, did not purge the provision of its legislative intent. 471 U.S. at 232-33. However, the Supreme Court did not hold that intervening legislative changes to the policy were legally insufficient to remove an earlier discriminatory intent. Because the present case deals with legislative changes, rather than judicial changes, to the felon disenfranchisement policy, Hunter should not be read to support the proposition that an impermissible motive in Florida's 1868 Constitution continues to the present in spite of legislative changes made in the 1968 Constitution.


[170] *fn37 The majority repeatedly refers to the current effects of the felon disenfranchisement provisionsome forty years after it was passedbut this is simply not relevant for understanding the motives of legislators in 1968. Unlike in Fordice, the racially disparate effect of the Florida's voting provision was not present when the provision was passed. In contrast to school desegregation where the racially disparate impact was at its height in the 1950s and 1960s and has decreased since, the felon disenfranchisement rule had very little racially disparate impact in the 1960s and only developed such an effect many years later.


[171] *fn38 The minutes of the committee meeting record the following motion was considered: "Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goodrich's motion failed for lack of a second." Doc. App. 10 at 983.


[172] *fn39 The full text of Section 2 states: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.


[173] *fn40 If this court chooses to adopt an interpretation that confronts the constitutional question, then we must address directly whether Congress has the power to trump constitutional provisions that are not applied in violation of the Equal Protection Clause.


[174] *fn41 The Second Circuit reinstated a district court opinion that reached the same conclusion on the scope of the Voting Rights Act. In Baker v. Pataki, an en banc panel was evenly split on the issue. 85 F.3d 919 (2d Cir. 1996). In an opinion urging the court to affirm, Judge Mahoney, joined by four other judges, argued that the Voting Rights Act was of questionable constitutionality if it applied to felon disenfranchisement provisions. Id. at 929-32. The judges looked for a clear statement from Congress supporting this interpretation and found evidence of Congressional support to be "manifestly lacking." Id. at 930. Only the Ninth Circuit has found a felon disenfranchisement provision to be a statutory violation. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). There, the plaintiffs brought a Voting Rights Act challenge to the State of Washington's felon disenfranchisement provision, claiming that racism in the criminal justice system interacted with the state's sufferage laws to deny equal voting opportunities to minorities. Id. at 1020. The Ninth Circuit reversed the grant of summary judgment, but did not specifically address the constitutionality of its interpretation. Logically, that court must have found that the statute covered the challenged provision and that Congress had the constitutional authority to regulate felon disenfranchisement provisions to reach its holding. Nevertheless, the Ninth Circuit did not provide any reasoning for its finding, and thus that court's decision, which is only persuasive authority in our circuit, should not inform our analysis.


[175] *fn42 Section 1973 of the Voting Rights Act in 1965 stated: No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.


[176] *fn43 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.


[177] *fn44 The current text, as amended in 1982, states: (a) 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. Section 1973b(f)(2) states that: No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.


[178] *fn45 In addition, there are currently two bills circulating in Congress that aim to limit a state's discretion to disenfranchise felons and include findings that felon disenfranchisement provisions create a disparate racial impact. Civil Participation and Rehabilitation Act, H.R. 259, 108th Cong. § 2(g) (2003), Ex-Offenders Voting Rights Act of 2003, H.R. 1433, 108th Cong. § 2(a)(11) (2003). Although not dispositive in interpreting the scope of the Voting Rights Act, it is unclear why these bills have been proposed if Congress has the clear understanding that the Voting Rights Act currently covers these cases.


[179] *fn46 Even if we assume that the Voting Rights Act applies to Florida's provision, the plaintiffs still must demonstrate that specific racial biases in society cause minorities to be convicted of felonies at a higher rate than whites. Cf. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1987) (stating that the Voting Rights Act requires that electoral practices interact with social or historical conditions to cause an racial inequality in the political process). Without such an initial showing, the plaintiffs do not allege a sufficiently specific nexus between racial discrimination and the felon disenfranchisement rule. The majority opinion discusses a long list of possible areas of discrimination, but here we are concerned only with how the state discriminates against similarly situated persons who have committed felonies. The record includes some evidence that there is a statistical difference in the rate of felony convictions along racial lines, even accounting for other factors. This finding is disturbing, but the statistical analysis cannot speak to causation. The plaintiffs' statistical findings only demonstrate correlations between different variables and do not purport to establish causal relationships between these variables. Causation analysis must come from sources external to the statistical analysis. Thus by definition, the plaintiffs cannot establish a causal nexus between variables by statistical results alone. The majority emphasizes that Voting Rights Act requires a "totality of the circumstances" analysis to evaluate whether racial discrimination, outside of the voting context, causes racial discrimination in the political process. I agree that this is the correct standard. I respectfully disagree with the majority, however, over what evidence is necessary to demonstrate that the alleged disparate impact in voting is caused by discrimination outside of the political process.