I earlier noted the 2d Circuit’s recent decision in Hayden v. Pakaki holding that section 2 of the Voting Rights Act does not reach felon disenfranchisement claims. The en banc decision featured 10 opinions, and I have now had a chance to read it. The case will be of considerable interest not only to election law scholars (for obvious reasons) but also to students of statutory interpretation. There is–in my view–a very questionable use of the absurdity exception to plain meaning used in the majority opinion to reach the conclusion that section 2 of the Act does not reach felon disenfranchisement claims despite apparent clear language that it does. The majority opinion also does not make what I consider the strongest argument (and it is one that appears in other opinions): that the avoidance canon should be applied to avoid the Boerne issue (something I’ve written about in the felon disenfranchisement context here). Judge Calabresi also makes some very interesting points on both dynamic statutory interpretation (this Congress’s views vs. the views of Congress that passed the statute).
For more commentary on the case see these posts at ACS Blog and at Demos’s Democracy Dispatches.