• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Felon Voting: Another Troubling Sotomayor Decision

    The Federal Bureau of Prison's Administrative Maximum Security prison, ADX Federal Prison in Florence, Colorado

    One of the biggest annoyances to the Left in recent years has been the Constitutional right of states to prohibit felons from voting. They have filed lawsuit after lawsuit (unsuccessfully) under the Voting Rights Act trying to overturn these laws. Fortunately, except for the Ninth Circuit (as usual), other circuit courts of appeal have properly recognized the constitutional authority of the states and have also held that the legislative history shows that Congress obviously did not consider such state laws to be subject to the prohibitions in the Voting Rights Act.

    The Fourteenth Amendment to the Constitution specifically recognizes the rights of states to abridge the right to vote “for participation in rebellion, or other crime.” As the Second Circuit recognized in 2006 in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), when it upheld New York’s law prohibiting incarcerated felons from voting, there were specific statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the Voting Rights Act. In fact, this was so clearly the case that there were several unsuccessful attempts in the 1970’s by some in Congress to amend the VRA to have it apply to such state laws.

    Yet in a dissenting opinion in Hayden, Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, disagreed. She thought that the majority’s extensive look into the history of the Voting Rights Act, the legislative comments, and the felon disenfranchisement rights of states as outlined in the Fourteenth Amendment were a waste of time. Since the Voting Rights Act “applies to all voting qualifications” and the New York statute “disqualifies a group of people from voting,” that should “constitute the entirety of [the court’s] analysis.” Sotomayor then makes the duplicitous claim that she is just upholding the statute, saying that “even if Congress had doubts about the wisdom of subjecting felon disenfranchisement laws to the results test of §2 [of the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.” Far from this modest result, she was actually proposing that the courts alter the statute by applying it to state laws to which Congress never intended the law to apply, and for good reason.

    Even more disturbing is the implication of her opinion that Congress could by statute run roughshod over express constitutional protections – in this case one that reserves a right to the states to determine whether criminals (even those in prison!) should be permitted to vote in their elections.

    The plaintiffs in this case rested their claim on the strained theory that restrictions on felons voting disproportionately impact minorities. This is yet another sad example where Judge Sotomayor appears to have allowed her views on race to supersede the clear requirement of the law.

    Posted in Legal [slideshow_deploy]

    38 Responses to Felon Voting: Another Troubling Sotomayor Decision

    1. Marsha, Wheeling Wes says:

      I believe Sonia Sotomayor dismisses the Constitution and uses her own personal interpretations related to gender and race. She overtly practices invidious discrimination which is a violation of her oath as a judge and the U.S. Courts Code of Conduct.

      The 15th amendment does not discuss confiscation of rights as related to the incarceration of the individual.

      The 14th amendment Section 1 is very clear that once a person has had due process he or she can lose their life, liberty or property and the laws can deprive these freedoms. The term "without due process" is a very clear statement that the people in prison has had due process and has been imprisoned and they can lose their life, liberty and/or property. How she could have dissented in the Hayden V Pataki ruling amazes me. This is like ignoring the second part of protection of religious exercise in the first amendment….

      Congress shall make no law respecting an establishment of religion, OR PROHIBITING THE FREE EXERCISE THEREOF; which is too often ignored in rulings.

    2. Sally, Seattle says:

      There are a large amount of people who are incarcerated in our country. They would compose a HUGE voting block.

      Wow! They could conceivably vote themselves free.

      A felon by definition has shown poor moral and ethical judgement and does not deserve to vote.

      Any predator candidate could promise to release the scaflaws and get elected.

      What are you thinking?

    3. Brad L, Phoenix says:

      It is imperative that the Senate give Sonja a full and open opportunity to speak to her past decisions on the bench. They must TOTALLY ignore any attempts to deal with her racial bias, but stick to the facts of her past rulings. Any deviation from this questioning will allow the media to divert any discussion of her questionalbe decisions based on the Constitution, to an ongoing harangue of the "mean spirtited Republicans". The public, and the other Senators, need to hear her comments on the cases judged and they will decide if she is makes decisions based on "empathy" or the Law.

    4. Wes, Litchfield, MN says:

      How many more of these "revelations" will come out before the administration will be forced to withdraw this nomination also.

    5. Ben Franklin, Kendal says:

      The republicans (small 'r') on the judiciary panel should just get her talking. Encourage her to talk, ask lots of questions, then when she answers, ask her to expound and elaborate and explain. Be very polite, and just let her open her mouth and insert her own foot. Because she WILL … over and over again. Then all the republicans (small 'r') vote against her confirmation en masse… they won't have enough votes to stop her anyways, so put it ALL on the Libs!!

    6. Normca says:

      Ms. Sotomayor is a nominee of Obama, what else can we expect ? He knows here decisions and selected her based on them. Obama ignores the constitution, therefore this is an attribute he sought out. The pundits on the radio and TV keep on talking of her statements. I am glad Heritage is talking about the next Justice's actions, which should disqualify her.

    7. Noel T. Kentucky says:

      Sotomayor is not qualified to serve, because of her opinion of the Constitution. However we have no one with enough love for our country to stand up to her based on constitutional principles. Because we have on principled leaders.

    8. Dominick C, CA says:

      As a naturalized citizen of the USA, who in the 1950s studied and learned the Constitution and about the rule of law, I believe that we're witnessing the deconstruction of the Government which our Founding Fathers entrusted "us" with. Shame on us if "we" allow this to go on!

    9. Brian Kilcullen, Ft says:

      Few realize that the Constitution empowers both The Government (Courts) and the citizens. Judges, contrary to popular ignorance, do not sit for life. They are only eligible "during good Behaviour." Any judge who would nullify OUR Constitution has clearly breached the bounds of good behaviour. If we citizens were learned enough in law and Constitution, we would exercise our powers in the Grand Jury and remove such judges from the bench.

      And yes, a Grand Jury can investigate and prosecute any violations of law or Constitution they wish. With or WITHOUT the prosecutor!

      Wake up America.

    10. Brad L, Phoenix says:

      Just another quick comment on "empathy". This is a concept that is critical to the effective governing of our citizens. However, the empathy must reside in the Congress. These are the people who pass laws that affect us all. Consideration (empathy) of how each law will change the lives of the citizens is critical to the positive development of our civilization. It appears to me that way too many laws, edicts, regulations are enacted without careful thought and discussion as to the REAL impact on the average American. Empathy belongs to the people who make the Law, the Supreme Court must take the responsibility of deciding whether or not that Law fits into the founding principles of our Country. The Supreme Court ALONE has the awesome responsibility of keeping our Laws on track within the guidelines established over 200 years ago in our Constitution. That document, and the structure it developed, has been the foundation of creating a country that enjoys the highest standard of living in the entire world and does more to help others, in total, than any other country.

    11. Lloyd Scallan - New says:

      Why is everyone acting surprised? We all know who and what is Sotomayer. That's the exact reason Obama nominated her. The Republicans had better not take the advise of the Dems. They are like sheep in a pack of wolves. They are so afraid of the news media, they do absolutely nothing. They will not mount a serious fight to stop this

      socilist before she becomes another perminate force put in place to distroy our way of life.

      Gutless, absolutely gutless. Not one is worth out votes.

    12. John Roane Sarasota says:

      If they have their way it will lead to dissolving all State Governments. No Governor, or State Legislature, just the one government of the Federal level. All will have to obey the President and his fellow Progressive Liberals. Next our pay checks will go directly to the Fed and they will decide what you need and send it to you.

      This is what you voted for America now live with it.

    13. Bruce, Hillsboro Ore says:

      This supreme court nomination is proved to be wrong 80% of the time and views the Constitution as putty to be molded to fit her own personal cultural beliefs. How many times does Obama have to prove he is a liar before America wakes up?

    14. Cheryl, Cary, NC says:

      This nation is spiraling out of control. We have lost our bearings on every critical aspect of life and governance. We are living in a truly sad time for America. God help us.

    15. Dennis A. Social Cir says:

      As obama goes so does the supreme court of this country. The Constitution means nothing to the current administration and is plain to see by the nomination for the court. She has already made it a point to throw out the constitution and what it stands for. MAY GOD HAVE MERCEY ON US AND THIS COUNTRY.

    16. Howard Rampy says:

      Her record speaks for herself, not to exclude her own statements. She should have no place in the judicial system.

    17. Larry, in the Republ says:

      Obiviously Sotomayor has a history of evading the IRS and her responsiblity to pay Ferderal Income Taxes. After all that is a "prerequisite" for an OBAMA "appointment" to office!! Maybe we should do a background check and see if she owes back child support or something? I know that if she was given a stage by OBAMA then there is some federal law violation in her past.

    18. Joan Wallis says:

      I think it is unconscienable that we do not see that the Constitutional requirement that the President of the USA be a natural-born citizen is not enforced….this man needs to be removed from office and charged with the crime of fraud and crimes and misdeamers… if he cannot produce a valid Birth Certificate– and I do not mean a Hawaiian Certificate of Live Birth which any one can obtain from Hawaii to prove that he/she exists as a human being not necessary born at any particular place…The Governor of Hawaii is keeping this information on his true Birth Certificate under lock and key. And Mr. Obama hired a battery of high profile lawyers as early as 2006 to find a way to circumvent this qualification…think of this and then think of him smiling beneath his classy demeanor of arrogance — at our apparent stupidity while he goes about pushing us down the path to Socialism with the intent of invalidating our Constitution entirely.

    19. Cathy, Michigan says:

      The only solution to what is happening to our country, including the "assured" nomination of the unqualified and prejudicial Sottomayor to the Supremes, is to be heard loud and clear. The next time there is an election in your district, do your patriotic duty and investigate the issues at hand. Make a decision, with your reason, NOT your emotions, then vote. Our vote is all we have, BO is going to be with us at least 4 years, what are you doing in the meantime to insure his non-reelection?

    20. Mary, Frederick MD says:

      How did he manage to win so many votes in the first place? I wondered that months ago! All he ever said throughout his campaign was "change!Change! Change!" Change what? Change how? Well, we see now. I was willing to let him try, and hope he could do it, but I always thought him too young, and I never understood his appeal as a speaker.

      And no, the constitution doesn't mean nothing to this administration at all! Nor did it mean much to some other recent presidents. I am only praying that we can hold onto our hats until 2012 when the next election comes, and that by then the Republicans can pull their act together and have come up with a good candidate and some better campaign ideas. If we haven't gone completely to pieces by then.

    21. Rafael of texas says:

      The destruction of our constitution and the capitalistic spirit of this country will stain all of the left media's hands with blood for not reporting the murdering of our constitution by this socialist egomaniac president;they don't ask him any questions or question his decisions in any way,thank God for talk radio, but soon he will also put his dirty paws on the free speech right!!

    22. Lynn B. DeSpain says:

      Judging from his track record, If Obama's for it, it will hurt you, and I'm against it. Plain and simple. Look at the World. It too is falling apart just as fast, or faster than America! Think about this recent event; a late term abortionist was murdered this past Sunday. Not unusual until you take note that the last abortion murders, burnings and such were in the Clinton era! None in the Bush era. Why?


    23. Ross writes, Flori says:

      What a extremely candid and clear view of Obama's true mindset and agenda through this surrogate, Supreme Court nominee Sotomayor, who clearly representing his naked anger and contempt for the Constitution of the United States. If the goddess of justice is blind, the Obama administration has plans to use a racist eye by cutting a hole in the blindfold to insure that his own warped view of America will become a reality. What a travesty!

      Thank you voters who voted against Bush in the last election. He wasn't running! You got your change. Regretfully now we all have to suffer with your intellectual shallowness, your irrational emotions, and political ignorants. Is "anything is better than Bush" really. . .? Only Divine Intervention can help us as a nation now, because the Republicans can't and Democrats won't.

    24. Joseph, So. IL says:

      These are the dark days for sure. We all knew this was coming. Well, those of us who voted against Barry. The Republicans, conservative types, need to strap it on, and quick. Getting rid of the token head of the GOP is a start. For I see no leadership rising to the top with the 2010 election cycle starting, let alone the 2012 season. Also, the answer is NO, I am not giving any $ to the Rep. Nat. Comm., not a dime. No more.

      I'm happy I held on to that condo lease in Cebu, Philippines. Might be time to enjoy the white sand and tan girls of the South Pacific for the next 4 years.

    25. Andy, Reality-Based says:

      Wow – clear the smoke away and look at what she actually wrote her dissenting opinion on. The suit was dismissed before it was even heard, and all she did was say that the plaintiffs ought to have the opportunity to have their case heard. That's all – just a day in court, not a ballot box on the cell block.

    26. genie coats Missi says:

      Felons should NOT be allowed to vote! They have already shown that they do NOT have good judgement in making choices, or they would NOT be where they are! We as the American people must also make good judgements, and the main one facing us NOW is the gov't trying to put this emotional woman on OUR Supreme Court! We need to all write or call our elected officials and tell them that we do NOT want this woman there!

      Most women are naturally more emotional than men, and therefore, men are designed to lead the family, the Church, and the Nation. I am a woman, and I know this to be true. There are some exceptions, especially since we know Sarah Palin! But we know that she has a strong record of wise decisions!

      We need some real MEN of strength and wisdom to be on the Highest Court. Our laws have always been firm and strong, and this is one of the main reasons that our country is still one of the best in History! If we let our laws slowly diminish, however, we will have nothing to protect and keep this nation strong and safe and free for our children and grandchildren!

      Our laws are based on TRUTH, and they will always work, if we keep them. Anything that anyone brings up to diminish what the Forefathers began, will break our Foundation! Nothing survives without a strong Foundation!

      Thank you,


    27. Truth Hurts, The Rea says:

      So Mr.O again picks another fool who fails to understand the Constitution and just happens to be a member of La Raza [A Racist Organization that should be on Homeland Security's famous watch list,right along with Aryan Nation,Black Panthers and some of the more leftist unions]Have we all forgotten Rev.Wright or Fr. Farger? This pick is yet more proof that our so-called pres. is a racist!The so called black man who is half white must drive such a mixed up mental midge crazy.Maybe we have the first certifiable loon for pres? At least that would his thinking we elected him King and explain some of his actions because most anyone can understand spending money you don't have only makes you more indebted and a slave to the bankers.

    28. Marshall Hill MI. says:

      Who in this country let this person decide anything for someone else?She is so Racial

      that I think any Business in this Country

      would move out,rather than let her decide

      their fate!She has hidden under her Law

      Degree just like OBAMA!

    29. Chuck , Cumming , Ge says:

      I am SO sick of this president, notice, no caps, that denotes respect, passing these folks out like candy at Halloween, we had better watch what is in the candy that we have been given. Now, to those who have already consumed the Koolaid, have some candy, it can't hurt you as you are most probably a numbskull anyway…..

      This woman is just another chip out of the tree of freedom, listen my friends and you can hear the creaking and the roots calling for someone to shore it up…thank you Glenn Beck for doing that , and I also am working at first aid for that tree by working with my neighbors and expressing my views on being a PATROIT !!

    30. Pingback: Well, One Sees Why The Right Doesn’t Want Tim Robbins To Vote « Around The Sphere

    31. Pingback: The Hill’s Blog Briefing Room » MIDDAY ROUNDUP

    32. Pingback: Confirmation Hearings: Ten Questions for Sonia Sotomayor | The National Scene

    33. MaryAnn, USA says:

      All representatives, congressional, presidential,and judicial take an oath to "protect, preserve and defend' the constitition of The United States. There is nothing in the oath that refers to empathy or any other emotion the left believes should be considered when considering and enacting laws. Empathy, compassion, sympathy- these belong in the realm of interpersonal relationships. Justice must remain blind for true justice to exist.

      We are rapidly becoming a nation under the rule of men rather than the rule of law, and I can think of no greater danger to our republic.

    34. Pingback: The Dems Game Plan: Distraction, Distraction, Distraction « Gunservatively!

    35. GeneralSikma, Allen says:

      I feel if a Republican male made the statements she made we would be admonished severely as being racest I also the judicial should sick to the rule of law and stick with the constitution as was given originaly and unchanged.

    36. Pingback: Liberally Conservative » Blog Archive » Some Judicial Facts On Sonia Sotomayor

    37. GregP - Florida says:

      We all can point fingers – we do by name saying against thoses and their views in which we do not agree. The truth of the matter is – we as americans have allowed a group of politicians and business CEOs to decide our fate in our laws and our constitution. If one is to look closely into laws that violated the constitutional structure of our valued document for freedom and justice for all – we the people allowed this destruction by not raising our voices and allowing our politicians to run afoul of our lives – stop blaming others and point the fingers at ourselves – the American people allowed this and god help us – one day we all will violate the laws that find us as undesirables. Wake up people

    38. columbus ohio says:

      although the laws says this some people make mistakes early in thier lives that will punish them for the rest of it and although all felons do not turn thier life around some do who should after a period of time be allowed the right to vote and participate in such things when they are livig a different life and being a model citizen despite their past. there should be some type of guideline or requirement for that just like there is for any other situation they face when turning thier lives around.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.