Given the breadth of this provision, whether the act excluded felon disenfranchisement laws seemed straightforward. Remarkably, the full court had attempted to resolve this issue 10 years earlier but had failed when it had split evenly in Baker v. Pataki.7

This time the court again was deeply divided, though a majority did emerge, albeit with a disquieting statutory analysis that seemed to go far out of its way to rule against the plaintiffs. At the outset, the court, in an opinion by Judge José A. Cabranes, recognized the self-evident: “There is no question that the language . . . is extremely broad – any ‘voting qualification or prerequisite to voting or standard, practice, or procedure’ that adversely affects the right to vote – and could be read to include felon disenfranchisement provisions . . . .” Remarkably, despite the well-established principle that statutory analysis begins and ends with the text of statutes when those statutes are unambiguous, the court ruled that it was not bound by the statute’s unambiguous text: “In any event, our interpretation of a statute is not in all circumstances limited to an apparent ‘plain meaning.’”

Having liberated itself from the statute it sought to interpret, the court then turned to a series of extra-statutory sources, including language in the Fourteenth Amendment implying endorsement of felon disenfranchisement, the act’s legislative history, and concerns about altering the state-federal relationship. And its review of each of these sources led the court to conclude that the Voting Rights Act, notwithstanding its plain meaning, excluded felon disenfranchisement schemes.

Five judges dissented. On the issue of statutory interpretation, Judge Barrington Parker spoke for four of them in writing sharply that “[t]he operative inquiry on this appeal is not whether a historic policy of felon disenfranchisement, read next to odds and ends from legislative histories, indicates Congress’ intention to exclude felon disenfranchisement laws from the coverage of the [Voting Right Act]. Rather, this appeal begins and ends with the simple question of whether we should read an unambiguous remedial statute, intended to have, as the Supreme Court has emphasized, the ‘broadest possible scope,’ to allow the Hayden plaintiffs’ claims to go forward. I believe we should.”

Upending Political Asylum

The Second Circuit’s most recent en banc decision came last year in a case involving China’s widely condemned “family planning” policies. The petitioners in the three consolidated cases were unmarried partners (a fiancee and two boyfriends) of women who had been forced to have abortions in China. All three men had fled and sought political asylum in the United States.

In 1996 Congress passed a law granting asylum to a person “who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program.” One year later, the Board of Immigration Appeals (BIA), which has primary responsibility for interpreting immigration law, construed the new provision to extend asylum per se to the spouses of the direct victims of coercive family-planning policies.

The question confronting the full court last year in Lin v. United States Department of Justice8 was whether this rule should be extended to nonmarried partners of such victims. Not only did the court reject that proposition, it held that the BIA had erred in its ruling of 10 years earlier about spousal asylum, a position that every other circuit that had addressed the issue had endorsed.

As in Hayden v. Pataki, in Lin the Second Circuit sought to interpret a federal statutory provision. Specifically, it considered whether the new asylum provision was limited to only those persons who personally had experienced forced abortions or sterilization or whether it extended to the spouses of such persons and even to the unmarried partners of such persons. And because the BIA already had ruled that the provision did protect spouses, the Second Circuit had to defer to that ruling unless it could conclude that the statute unambiguously foreclosed the BIA’s interpretation.

In concluding that the statute indeed did foreclose the BIA’s interpretation, the Second Circuit embraced “two cardinal rules” not evident in Hayden: “[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Invoking these rules, the court then held that the text of the new law so clearly extended asylum only to those who were the personal victims of coercive family practices that no further inquiry was necessary. In terms that are hard to square with Hayden’s conscious disregard of the plain meaning of the Voting Rights Act, the court stated,

We do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and a potential parent. But such a loss does not change the requirement that we must follow the “ordinary meaning” of the language chosen by Congress . . . .


Given its ruling that spouses did not qualify for asylum, the court held that neither did fiancees or boyfriends. It therefore denied relief to all three of the men seeking asylum on these grounds.

Looking Forward

Consistent with this history, the Second Circuit’s recent decision to hear en banc the appeal in Arar v. Ashcroft promises to present the court with a number of important civil rights issues arising out of the federal government’s involvement in the rendition and torture of persons viewed by the government as terrorism suspects. That the full court decided on its own initiative to review a panel decision rejecting the plaintiff’s claims is a promising sign, though its recent en banc rulings leave one apprehensive about its approach to major civil rights controversies.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

Endnotes:

1. Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. 2001) (en banc).

2. United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) (en banc).

3. 172 F.3d 144 (2d Cir. 1999) (en banc).

4. 530 U.S. 466 (2000).

5. 274 F.3d 655 (2d Cir. 2001) (en banc).

6. 449 F.3d 305 (2d Cir. 2006) (en banc).

7. 85 F.3d 919 (2d. Cir. 1996) (en banc).

8. 494 F.3d 296 (2d Cir. 2007) (en banc).