A long-running dispute over the denial of voting rights to those convicted of serious crimes — a dispute that some civil liberties advocates say is the next major battleground over voters’ rights — has so far not gained review in the Supreme Court.  It may elude review again, as a conflict that had developed among lower courts has now been put in doubt.  The Justices considered, at their private Conference today, a new case on the issue from Massachusetts; they did so after lawyers for that state had notified the Court of the possible end of the lower courts’ disagreement.

The new case is Simmons, et al., v. Galvin (09-920).  It tests whether it is a violation either of the Constitution or of federal voting rights law to deny the right to vote to individuals when they are in prison, when most people sent to prison are minorities.  Since 2000, Massachusetts has withheld the right to vote from anyone of voting age serving prison time for a felony, although the right is restored once the inmate is released.  Only two states, Maine and Vermont, permit convicted felons to vote while they are in prison.

When lawyers for a group of Massachusetts inmates filed the Simmons case in the Supreme Court on Feb. 1, there was a conflict among federal Circuit Courts:  the First, Second and Eleventh Circuits had upheld restrictions on felons’ voting rights, while the Ninth Circuit had ruled twice that disenfranchised felons’ challenges could go forward under Section 2 of the federal Voting Rights Act.   However, on Wednesday of this week, the Ninth Circuit ordered rehearing en banc on the issue, thus setting aside the latest panel ruling.  The letter from Massachusetts’ lawyers to the Supreme Court, notifying the Justices of this development, along with a copy of the Ninth Circuit Court’s en banc order, can be viewed here.

The theory on which the felons’ challenges usually have been based is that criminal justice systems in the states tend to be racially discriminatory, putting more minorities in prison with one consequence, among others, of depriving them of the right to vote.  Since federal voting rights law forbids race-based discrimination in voting, when the bias is the practical result of official policy even if not the specific intention of such policy, felons contend that imprisoning more minorities is a discriminatory result in voting rights under Section 2.  States have defended their laws against felon voting with the argument that inmates are denied the right to vote not because of their race, but because of felony convictions.

The Supreme Court has three times refused to hear inmates’ challenges on the issue — twice in 2004, in New York and Washington State cases, and once in 2005, in a Florida case.  Justice Sonia Sotomayor is the only member of the Court now who has taken a position on the issue; in 2006, when she was a judge on the Second Circuit Court, she dissented when that Court ruled en banc against the inmates’ claim.  Whether that position would lead her to disqualify herself from a Supreme Court case, if one were granted review, is not clear at this point.

Posted in Cases in the Pipeline