On July 31, the First Circuit ruled 2-1 that nothing in the federal Voting Rights Act prevents Massachusetts from ending the ability of felons to vote absentee while in prison. Massachusetts had made that change in 2000. The case is Simmons v Galvin, 08-1569.

Section 2 of the Voting Rights Act says “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State…in a manner which results in a denial or abridgement of the right…to vote on account of race or color.”

Plaintiffs wanted to present evidence that Massachusetts’ felon disenfranchisement law has a disproportionally adverse effect on African-Americans and Hispanic Americans, who are overrepresented in the incarcerated felon population. The two-judge majority, composed of Judges Sandra Lynch and Michael Boudin, determined that Congress never expected that Section 2 of the Voting Rights Act could be used for that purpose. The dissenting judge, Juan Torruella, said that Section 2’s language is clear and unambiguous, and therefore speculations about what Congress intended are irrelevant. He also would have held that the 2000 law change is an Ex Post Facto punishment, as applied to felons who had committed their crimes before the year 2000. The majority rejected the Ex Post Facto argument by concluding that felon disenfranchisement is not punishment. Thanks to ElectionLawBlog for this news. Here is a link to the decision. The majority opinion is 46 pages and the dissent is 58 pages.