Joseph HAYDEN, on behalf of himself and all individuals similarly situated; Lumumba Akinwole-Bandelle, Wilson Andino, Gina Aidas, Wanda Best-Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Reran Holmes, III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Lillian M. Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield and Barbara Scott, on behalf of themselves and all individuals similarly situated, Plaintiffs-Appellants, v. George PATAKI, Governor of the State of New York; Carol Berman, Chairperson, New York Board of Elections; Glenn S. Goord, Commissioner of New York State Department of Correctional Services, Defendants-Appellees, 449 F.3d 305

Chief Judge JOHN M. WALKER, JR., concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS. Judge JACOBS concurs in the judgment and in the opinion of the Court and files a separate concurring opinion. Judge STRAUB concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion, joined by Judge SACK. Judge SACK concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion,

part I of which is joined by Judge STRAUB. Judge RAGGI concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS. Judge PARKER dissents, in an opinion in which Judges CALABRESI, POOLER, and SOTOMAYOR concur. Judge CALABRESI dissents in a separate opinion. Judge SOTOMAYOR dissents in a separate opinion. Judge KATZMANN dissents in a separate opinion. JOSÉ A. CABRANES, Circuit Judge. We have granted en banc review in order to decide whether plaintiffs can state a claim for violation of

Section 2 of the Voting Rights Act (“VRA” or the “Act”), 42 U.S.C. § 1973, based on allegations that a New York State statute that disenfranchises currently incarcerated felons and parolees, N.Y. Election Law § 5-106, results in unlawful vote denial and vote dilution. Muntaqim v. Coombe, 396 F.3d 95 (2d Cir.2004). We consider two cases that were consolidated for the purpose of oral argument: Muntaqim v. Coornbe, which was dismissed by the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) on a motion for

summary judgment, a decision which was then affirmed by a three-judge panel of this Court, Muntaqim v. Coornbe, 366 F.3d 102 (2d Cir.2004); and Hayden v. Pataki, which raises substantially identical claims, was dismissed on the pleadings by the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge), Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921 (S.D.N.Y. June 14, 2004), and was consolidated with the Muntaqim en banc without having been considered by a three-judge panel.

Simultaneously with the filing of this opinion, the en banc court has (1) entered an order deconsolidating the Muntaqim and Hayden cases, and (2) filed a separate opinion vacating the District Court’s opinion in Mun-taqim on the ground that the plaintiff in that case lacked standing to bring a claim. We recognize that this case poses a complex and difficult question that, absent Congressional clarification, will only be definitively resolved by the Supreme Court. Indeed, this is the second time we have considered this question as an en banc court. See Baker v.

Pataki, 85 F.3d 919 (2d Cir.1996) (affirming District Court judgment after evenly dividing on the merits); see also Muntaqim, 366 F.3d at 104 (recognizing that “this is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court”). Nevertheless, the question is now before us, and we hold that the Voting Rights Act does not encompass these felon disenfranchisement provisions, and, consequently, affirm the judgment of the District Court.

Our holding is based on our conclusion that Congress did not intend or understand the Voting Rights Act to encompass such felon disenfranchisement statutes, that application of the Voting Rights Act to felon disenfranchisement statutes such as these would alter the constitutional balance between the States and the Federal Government, and that Congress at the very least did not clearly indicate that it intended the Voting Rights Act to alter the federal balance in this way. I.

Before turning to the substantive questions raised by this case, we summarize the path this case has taken since Munta-qim’s complaint was first filed in 1994. We assume familiarity with the panel decision in Muntaqim and will limit our discussion of that opinion to facts necessary to explain our resolution of the present case. We also set forth here the background of the Hayden case, which no three-judge panel of this Court has yet addressed.

Muntaqim is a black inmate at the Sha-wangunk Correctional Facility in Wallkill, New York, and is currently serving a maximum sentence of life imprisonment after being convicted of two counts of murder in the first degree for killing two New York City police officers on May 21, 1971.

On September 26, 1994, he filed a pro se complaint against several officials of the New York State Department of Correctional Services (collectively, “defendants”) alleging, inter alia, that New York Election Law § 5-106 violates the Voting Rights Act because it “results in a denial or abridgement of the right ... to vote on account of race.” 42 U.S.C. § 1973(a). On January 24, 2001, upon defendants’ motion for

summary judgment, the District Court entered judgment in favor of defendants. An appeal followed. A unanimous panel of this Court issued a decision on April 23, 2004, affirming the District Court’s dismissal of the claim. Muntaqim, 366 F.3d at 104. The panel concluded that in light of recent Supreme Court decisions that have clarified the scope of Congress’s enforcement power under the Reconstruction Amendments, the application of the Voting Rights Act to felon disenfranchisement statutes such as that of New York would infringe upon the states’ well-established discretion to deprive felons of the right to vote.

Because the Supreme Court has instructed us that statutes should not be construed to alter the constitutional balance between the states and the federal government unless Congress makes its intent to do so unmistakably clear, we will not construe the Voting Rights Act to extend to New York’s felon disenfranchisement statute. Id. (footnote omitted). On October 1, 2004, our Court voted to deny en banc review. Muntaqim v. Coombe, 385 F.3d 793, 793-94 (2d Cir.2004).

Following the Supreme Court’s denial of certiorari, 543 U.S. 978, 125 S.Ct. 480, 160 L.Ed.2d 356 (2004), we revisited the case and agreed to rehear the case en banc, pursuant to Fed. R.App. P. 35(a). Muntaqim v. Coombe, 396 F.3d 95, 95 (2d Cir.2004). The en banc proceeding was convened to determine “whether, on the pleadings, a claim that a New York State statute,

Section 5-106 of the New York Election Law, that disenfranchises currently imprisoned felons and parolees results in unlawful vote dilution, can state a claim for violation of

Section 2 of the Voting Rights Act.” Id. The Hayden plaintiffs filed their initial complaint on November 9, 2000. The complaint names twenty-one plaintiffs, of whom six are currently incarcerated and four are currently on parole. Plaintiffs’ amended complaint, filed March 18, 2003, challenges “New York State’s unconstitutional and discriminatory practice of denying suffrage to persons who are incarcerated or on parole for a felony conviction and the resulting discriminatory impact that such denial of suffrage has on Blacks and Latinos in the State.” Plaintiffs styled their complaint as a class action, with the class to include three subclasses: “(

a) Black and Latino prisoners who are of lawful voting age, citizens of the United States, currently incarcerated in New York State as a result of a felony conviction, and otherwise qualified to vote but for them incarceration resulting from a felony conviction; (

b) Black and Latino parolees who are of lawful voting age, citizens of the United States, currently on parole in New York State as a result of a felony conviction, and otherwise qualified to vote but for their parole resulting from a felony conviction; and (

c) Black and Latino persons who are of lawful voting age, citizens of the United States, qualified to vote and denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction.” Am. Compl. ¶ 29. Plaintiffs allege both vote denial and vote dilution claims under

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Id. ¶¶ 87-93. On June 14, 2004, the District Court issued a Memorandum and Order granting defendants’ motion for judgment on the pleadings and dismissing all of plaintiffs’ claims. Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921, 2004 U.S. Dist. LEXIS 10863 (S.D.N.Y. June 14, 2004). As relevant for this appeal, the District Court summarily dismissed plaintiffs’ Voting Rights Act claim in reliance on Muntaqim. The District Court’s complete discussion of the issue was as follows: Plaintiffs’ claims under

Section 2 of the Voting Rights Act of 1965, codified at 42 U.S.C. § 1973, must be dismissed in light of the Second Circuit’s recent holding in Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004). There the Second Circuit held that “ § 1973 cannot be used to challenge the legality of § 5-106.” Id. at 104. Id. at *5, 2004 U.S. Dist. LEXIS 10863 at *16. Plaintiffs timely filed a notice of appeal. After questions arose regarding Munta-qim’s standing, we directed the filing of supplemental letter briefs on the question, and on February 24, 2005, we consolidated Hayden with Muntaqim for consideration en banc.

Oral argument on the consolidated cases took place before the en banc court on June 22, 2005. In a separate opinion, we are dismissing Muntaqim for lack of standing. II. A. Statutory Provisions

Section 5-106 of the New York Election Law provides that no person convicted of a felony “shall have the right to register for or vote at any election” unless he has been pardoned, his maximum sentence of imprisonment has expired, or he has been discharged from parole. Accordingly, no resident of New York State who is presently incarcerated for a felony or is on parole may vote in local, state, or federal elections. Felon disenfranchisement has a long history in New York.

The New York State Constitution of 1821 authorized the state legislature to enact laws disenfranchising those convicted of “infamous crimes.” N.Y. Const. of 1821, art II, § 2. The state legislature passed such a law the next year. Act for Regulating Elections, ch. 250, § 25, 1822 N.Y. Laws 280. This law, as revised, has been in effect in the State ever since. It was modified in 1971 to provide that those convicted of felonies would automatically regain the right to vote once their maximum sentence had been served or they had been discharged from parole. Act of May 25, 1971, ch. 310, § 2, 1971 N.Y. Laws 952-53.

In 1973, New York again amended the statute to ensure that felons were only disenfranchised if they were sentenced to a term of imprisonment and not if they were sentenced to fines, probation, or conditional discharge. Act of June 11, 1973, ch. 679, §§ 2-5, 1973 N.Y. Laws 2247-48.

Section 2 of the Voting Rights Act, codified at 42 U.S.C. § 1973(

a) and originally enacted in 1965, currently provides: No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color 42 U.S.C. § 1973(a).

Section 1973(b), originally enacted in 1982, states, in relevant part, that “[a] violation of subsection (a) ... is established if, based on the totality of circumstances, it is shown that ... members [of protected minority groups] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). The current language of § 1973 was enacted by Congress as part of the Voting Rights Act Amendments of 1982, Pub.L.

No. 97-205, § 3, 96 Stat. 131, 134, largely in response to the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Bolden, a plurality of the Court held that racially neutral state action violates § 1973 only if it is motivated by a discriminatory purpose. 446 U.S. at 62, 100 S.Ct. 1490.

The amended version of § 1973 eliminates this “discriminatory purpose” requirement and, instead, prohibits any voting qualification or standard that “results” in the denial of the right to vote “on account of’ race. B. Interpreting the Voting Rights Act We do not write on a clean slate in addressing the question whether the Voting Rights Act encompasses felon disenfranchisement statutes. We ourselves considered this issue as an en banc court in 1996 but did not definitively resolve the issue at that time because we were evenly divided on the matter. Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (en banc).

The Eleventh Circuit recently considered this question as an en banc court and, in an opinion by Judge Phyllis Kravitch, relying on the canon of statutory construction that counsels avoidance of potential constitutional infirmities, held that the provisions of the Voting Rights Act do not encompass felon disenfranchisement laws. Johnson v. Gov. of State of Florida, 405 F.3d 1214 (11th Cir.2005) (en banc). By contrast, a panel of the Ninth Circuit has determined that the Voting Rights Act does apply to felon disenfranchisement provisions. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003).

Over a dissent written by Judge Alex Kozinski and joined by six other judges, the Ninth Circuit denied the defendant’s petition for rehearing en banc. See Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004). In light of the lengthy discussions of these cases (except the Johnson en banc) in the panel opinion, see Muntaqim, 366 F.3d at 107-15, we need not elaborate on them here, except as relevant for our analysis. C.

Vote Denial We thus confront the question whether the VRA applies to a claim that a prisoner disenfranchisement statute such as § 5-106, acting in combination with historic racial discrimination allegedly afflicting the New York criminal justice system as well as society at large, results in the denial to Black and Latino prisoners of the right to vote “on account of race or col- or.” New York’s statute, it is important to emphasize, disenfranchises only currently incarcerated prisoners and parolees. N.Y. Election Law § 5-106.

In this respect, the statute may not raise the same issues that are implicated by provisions disenfranchising for life those convicted of felonies, such as the provision of the Florida Constitution addressed in the Eleventh Circuit’s recent decision in Johnson or by the provision of the Washington Constitution addressed in Farrakhan. The question whether a prisoner disenfranchisement statute such as New York’s can be challenged under § 1973 depends primarily on our

interpretation of the Voting Rights Act itself, as we must first determine whether the Act applies to such statutes at all. If the VRA does not encompass such statutes, that would end our inquiry; if, conversely, we conclude that it may apply to felon disenfranchisement laws, we would then need to evaluate such an

interpretation of the VRA in light of its implications for our constitutional jurisprudence and the structure of our federal system. We thus consider the scope of § 1973. As we have noted, “[i]n interpreting a statute, we must first look to the language of the statute itself,” and that “[i]f the statutory terms are unambiguous, our review generally ends and the statute is construed according to the plain meaning of its words.” Greenery Rehab. Group v. Hammon, 150 F.3d 226, 231 (2d Cir.1998).

The Supreme Court has made clear that “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil, 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).

There is no question that the language of § 1973 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 if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA’s enactment and thereafter.

We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our

interpretation of a statute is not in all circumstances limited to any apparent “plain meaning.” As Justice Holmes has observed, “[i]t is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.” Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928).

Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. See Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (“The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect.”).

These reasons include (1) the explicit approval given such laws in the Fourteenth Amendment; (2) the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States; (3) the statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the statute; (4) the absence of any affirmative consideration of felon disenfranchisement laws during either the 1965 passage of the Act or its 1982 revision; (5) the introduction thereafter of bills specifically intended to include felon disenfranchisement provisions within the VRA’s coverage; (6) the enactment of a felon disenfranchisement statute for the District of Columbia by Congress soon after the passage of the Voting Rights Act; and (7) the subsequent passage of statutes designed to facilitate the removal of eonvict-ed felons from the voting rolls.

We therefore conclude that § 1973 was not intended to — and thus does not- — encompass felon disenfranchisement provisions. D. Felon Disenfranchisement The starting point for our analysis is the explicit approval given felon disenfranchisement provisions in the Constitution.

Section 2 of the Fourteenth Amendment provides that “when the right to vote at any [federal] election ... is denied to any of the male inhabitants of [a] State ... or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced .... ” U.S. Const. amend. XIV, § 2 (emphasis added). The Supreme Court has ruled that, as a result of this language, felon disenfranchisement provisions are presumptively constitutional. Richardson v.

Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (rejecting a nonracial Equal Protection challenge to the felon disenfranchisement provision of California’s constitution). Indeed, the practice of disenfranchising those convicted of crimes is of ancient origin. Professor Mirjan R.

Damaska of the Yale Law School, among others, has recounted that in ancient Athens, the penalty for certain crimes was placement in a state of “infamy,” which entailed the loss of those rights that enabled a citizen to participate in public affairs, such as the rights to vote, to attend assemblies, to make speeches, and to hold public office. Mirjan R. Damaska, Adverse Legal Consequences of Conviction and their Removal: A Comparative Study, 59 J.Crim. L., Criminology & Police Sci. 347, 351 (1968). The Roman Republic also employed infamy as a penalty for those convicted of crimes involving moral turpitude. Id.

The infamy practice in the ancient world over the years evolved into “civil death” laws in Medieval continental countries and into the “attainder” laws of Medieval England, which caused all family and political rights to be forfeited as additional punishment for crimes carrying sentences of death or life imprisonment. Id. The loss of any generally available voting rights was not a prominent focus of these attainder laws, for, as Judge Friendly wryly noted, “with nearly all felonies punishable by death in 18th century England, the voting rights of convicted felons had not been a very live issue there.” Green v.

Bd. of Elections, 380 F.2d 445, 450 (2d Cir.1967) (citation omitted). In Nineteenth Century Continental Europe, it was not uncommon for penal statutes to prescribe “the deprivation of the right to vote, to elect and to be elected .... ” Damaska, 59 J.Crim. L., Criminology & Police Sci., at 352-53 (citing statutes from Belgium, Italy, Luxembourg, Monaco, Spain, Egypt, and Chile). Similar laws disenfranchising felons were adopted in the American Colonies and the Early American Republic as well. In his opinion in Green v.

Board of Elections, a 1967 nonracial challenge to New York’s felon disenfranchisement provision (as it was at the time), Judge Friendly-noted that “eleven state constitutions adopted between 1776 and 1821 prohibited or authorized the legislature to prohibit exercise of the franchise by convicted felons,” Green, 380 F.2d at 450 (footnote omitted), and that “twenty-nine states had such provisions when the Fourteenth Amendment was adopted” in 1868. Id Today, likewise, every state except Maine and Vermont disenfranchises felons.

See Developments in the Law: One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L.Rev.1939, 1942 (2002). As the Eleventh Circuit noted, quoting the panel opinion in Muntaqim, “ ‘considering the prevalence of felon disenfranchisement [provisions] in every region of the country since the Founding, it seems unfathomable that Congress would silently amend the Voting Rights Act in a way that would affect them.’ ” Johnson, 405 F.3d at 1234 (quoting Muntaqim, 366 F.3d at 123-24). We now proceed to determine whether Congress in fact intended to do so. E.

Congressional Intent in the Voting Rights Act The Voting Rights Act, enacted in 1965, “was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). “The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country.” Id.

By its terms, the 1965 Act, prior to its subsequent amendment in 1982, prohibited States (or their political subdivisions) from imposing or applying any “voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Id. at 338, 86 S.Ct. 803. It is indisputable that the Congress intended “to give the Act the broadest possible scope.” Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

We do not believe that this general intent answers the specific question regarding whether the Act covers felon disenfranchisement laws, as it is equally indisputable that Congress did not explicitly consider felon disenfranchisement laws to be covered by the Act and indeed affirmatively stated that such laws were not implicated by provisions of the statute. In discussing

Section 4(

c) of the Voting Rights Act, 42 U.S.C. § 1973b(c)—which banned any “test or device” that limited the ability to vote to those individuals with “good moral character” — the Senate Judiciary Committee Report stated that the provision “would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.” S.Rep.

No. 89-162, at 24 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirk-sen, Hruska, Fong, Scott, and Javits); see also H.R.Rep. No. 89-439, at 25-26 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2457 (“This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.”). Senator Joseph D. Tydings of Maryland “emphasize[d]” on the Senate floor that

Section 4(

c) was not intended to prohibit “a requirement that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. Those grounds for disqualification are objective, easily applied, and do not lend themselves to fraudulent manipulation.” 111 Cong. Rec. S8366 (daily ed. April 23, 1965) (statement of Sen. Tydings).

Though these statements were made in the context of a particular VRA provision not at issue here — the provision banning any “test or device” — it is apparent to us that Congress’s effort to highlight the exclusion of felon disenfranchisement laws from a VRA provision that otherwise would likely be read to invalidate such laws is indicative of its broader intention to exclude such laws from the reach of the statute. Indeed, the emphatic language chosen to provide assurance that felon disenfranchisement laws remain unaffected by the statute suggests that these statements be read to indicate that “not even this

section applies to felon disenfranchisement laws,” rather than “this

section does not apply to felon disenfranchisement laws, but other sections might,” as plaintiffs argue. Further indications that Congress in 1965 did not intend or understand the Voting Rights Act (or its subsequent amendments) to apply to felon disenfranchisement provisions come from the unsuccessful attempts in the early 1970s to amend the statute to apply to such provisions. Following hearings by the House Judiciary Committee in 1972 to address “The Problems of the Ex-Offender,” see Hearings on Corrections,

Part VI, Illinois: The Problems of the Ex-Offender, Before Subcomm. No. 3 of the House Comm, on the Judiciary, 92d Cong. (1972), several notable proponents of the VRA, Representatives Robert W. Kastenmeier of Wisconsin, John Conyers, Jr. of Michigan, William Fitts Ryan of New York, Abner J.

Mikva of Illinois, and Hamilton Fish, Jr. of New York, jointly introduced a bill designed “[t]o amend the Voting Rights Act of 1970 to prohibit the States from denying the right to vote in Federal elections to former criminal offenders who have not been convicted of any offense related to voting or elections and who are not confined in a correctional institution.” H.R. 15049, 92d Cong. (1972). The bill was thus expressly intended to amend the Voting Rights Act to encompass the very laws that plaintiffs in the instant case insist were already covered by the 1965 Act.

Apparently, no further action was taken on this bill. In the next Congress, in 1973, Representative Kastenmeier, a supporter of the Voting Rights Act of 1965 and a “principal architect” of the re-authorization of the Voting Rights Act in 1968 as well as the enactment of the Civil Rights Act of 1964, see 102 Cong. Rec. S18797 (daily ed. Nov. 27, 1991) (statement of Sen. Kohl), introduced a new bill with the identical text. H.R. 9020, 93d Cong. (1973).

A hearing on the proposed bill was held before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice (of which Representative Kastenmeier was Chairman) on January 30, 1974 and, as the published transcript indicates, was entirely predicated on the understanding that the Voting Rights Act did not cover felon disenfranchisement laws. Accordingly, the hearing focused on whether such an amendment to the VRA would be constitutional and whether it was sound policy.

See Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 93d Cong. 1-38 (1974). None of the Representatives who spoke at the hearing so much as intimated that the proposed bill was made unnecessary by the fact that the statute already encompassed felon disenfranchisement laws. The proposed bills of 1972 and 1973 thus reveal that the law was not understood by those most familiar with it to encompass felon disenfranchisement provisions.

Furthermore, because these proposed bills only sought to add Voting Rights Act coverage to those who were no longer “confined in a correctional institution,” it is yet more implausible that the Voting Rights Act was understood to apply to prisoner disenfranchisement statutes. We are mindful, “ ‘[o]f course, [that] the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value.’ ” Gozlon-Peretz v. United States, 498 U.S. 395, 406, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (quoting Bell v.

New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983)). Here, the persuasive value of the subsequent legislative efforts is further enhanced by the temporal proximity of the later Congresses that understood the Voting Rights Act not to apply to felon disenfranchisement provisions and by the related fact that a number of the Representatives involved in the hearings were the very same legislators who had participated in the enactment of the original VRA just a few years earlier.

In this regard, it is also telling that during this same period, Congress affirmatively enacted a felon disenfranchisement statute in the District of Columbia, over which it had plenary power before the conferral of “home rule” in 1974. See Pub.L. No. 92-220, § 4, 85 Stat. 788, 788 (1971). It is highly implausible that shortly after passing a statute (the VRA) purportedly intended to limit such laws, Congress would have enacted for its local jurisdiction a new statute doing exactly what it had supposedly forbidden on a national level.

The 1982 amendment of the Voting Rights Act also gives no indication that the law is to apply to felon disenfranchisement provisions. As noted, this amendment was enacted for the specific purpose of overruling the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See S.Rep. No. 97-417, at 15-16 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 192-94; see also William N.

Eskridge, Jr. et al., Cases and Materials on Legislation 149 (3d ed. 2001) (“The Bolden result in the Supreme Court triggered a firestorm of protest from civil rights advocates and Members of Congress. Hearings in 1981 were replete with testimony that the Court’s decision was a departure from earlier Fifteenth Amendment precedents, as Justice Marshall had argued in dissent. A bipartisan coalition voted to amend the Voting Rights Act in 1982 to overrule, in effect, the Bolden decision.”).

Bolden had concluded that “racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation,” Bolden, 446 U.S. at 62, 100 S.Ct. 1490, and held that “the language of § 2 [of the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself.” Id. at 60-61, 100 S.Ct. 1490.

Congress’s amendment of the VRA was thus intended to make clear that § 2 covered both vote denial and vote dilution and to reinstate the “results test,” which had been the rule developed in the pre-Bolden case law. See, e.g., White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); S.Rep. No. 97-417, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. at 205 (“The ‘results’ standard is meant to restore the pre-Mo-bile legal standard which governed cases challenging election systems or practices as an illegal dilution of the minority vote. Specifically, subsection (

b) embodies the test laid down by the Supreme Court in White.”). In light of this history, it is apparent that Congress’s intention in amending § 1973 was to target those electoral laws, practices, and procedures that resulted in diluting the strength of the votes of members of racial and ethnic minorities but did not on their face deny any individuals the vote. See S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-202 (citing Supreme Court eases that addressed apportionment and reapportionment plans). The addition of § 1973(

b) further demonstrates that Congress’s particular focus was these vote-diluting practices.

Section 1973(

b) provides that a violation of the VRA can be established if “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by members of a protected class of citizens such that “its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). There is no question that incarcerated persons cannot “fully participate in the political process” — they cannot petition, protest, campaign, travel, freely associate, or raise funds. It follows that Congress did not have this subpopulation in mind when the VRA

section at issue took its present form in 1982. We acknowledge that subsection (

b) differs from subsection (a). See Chisom v. Roemer, 501 U.S. 380, 395, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (“The two purposes of the amendment [to

Section 2] are apparent from its text.

Section (

a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section.

Section (

b) provides guidance about how the results test is to be applied.”). Nevertheless, the fact that the provision specifying how a claim is to be proved could not possibly apply to prisoners gives rise to greater doubt that Congress intended prisoners to be able to raise such a claim in the first place. We thus conclude that the amendment of subsection (

a) to prohibit any “voting qualification or prerequisite to voting or standard, practice, or procedure that results in vote denial or vote dilution on account of race or color” was not contemplated or meant to include longstanding state felon disenfranchisement statutes, the existence and general validity of which were recognized both by the Fourteenth Amendment and in the legislative history of another

section of the Voting Rights Act itself. Subsequent Congressional actions provide additional evidence that Congress has not understood the Voting Rights Act to cover felon disenfranchisement laws. For example, the National Voter Registration Act, enacted in 1993, explicitly provides for “criminal conviction” as a basis upon which voters’ names may be removed from lists of eligible voters. See Pub.L. No. 103-31, 107 Stat. 77 (codified at 42 U.S.C. § 1973gg-6(a)(3)(B)). The Help America Vote Act of 2002 directs States to remove disenfranchised felons from their lists of those eligible to vote in federal elections.

See Pub.L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15483(a)(2)(A)(ii)(I)). Finally, a number of bills have been proposed in the past several years that would limit States’ ability to disenfranchise felons. See Civic Participation and Rehabilitation Act, H.R. 259, 108th Cong. 2(a)-(c) (2003); Ex-Offenders Voting Rights Act of 2003, H.R. 1433, 108th Cong. (2003); Ex-Offenders Voting Rights Act of 2005, H.R. 663, 109th Cong. (2005); Count Every Vote Act of 2005, S. 450, 109th Cong. (2005).

These bills further indicate that Congress itself continues to assume that the Voting Rights Act does not apply to felon disenfranchisement provisions. In light of this wealth of persuasive evidence that Congress has never intended to extend the coverage of the Voting Rights Act to felon disenfranchisement provisions, we deem this one of the “ ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (alteration in original)); cf. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (Scalia, J., concurring in the judgment) (“I think it entirely appropriate to consult all public materials, including ... the legislative history ..., to verify that what seems to us an unthinkable disposition ... was indeed unthought of, and thus to justify a departure from the ordinary meaning of the [statute’s text].”).

In such cases, the Court has made clear, “the intention of the drafters, rather than the strict language, controls.” Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026. As Judge Kozinski noted in his dissent from denial of rehearing en banc in the Ninth Circuit case, “[i]t’s thus crystal clear that felon disenfranchisement wasn’t one of the practices about which Congress was concerned. We are bound to respect that legislative judgment — not override it.” Farrakhan, 359 F.3d at 1121. We accordingly construe the statute to not encompass felon disenfranchisement laws. III. A.

Clear Statement Rule Our decision not to apply § 1973 to felon disenfranchisement provisions is confirmed and supported by the operation of the clear statement rule (also known as the “plain statement rule”), a canon of

interpretation which requires Congress to make its intent “ ‘unmistakably clear’ ” when enacting statutes that would alter the usual constitutional balance between the Federal Government and the States. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascade-ro State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)) (internal quotation marks omitted).

Accordingly, to the extent that the Voting Rights Act would affect this balance if applied to felon disenfranchisement statutes, we must construe the statute not to encompass such provisions if it is even unclear whether Congress intended the Voting Rights Act to apply to such laws.

The clear statement rule provides that, “[i]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ ” Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142) (internal quotation marks omitted).

According to the Supreme Court, “[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Id. at 461, 111 S.Ct. 2395 (citations and internal quotation marks omitted) (emphasis added). Thus, we have stated that federal courts will construe a statute to alter the federal balance only when Congress expresses an “affirmative intention” to do so. DeMarco v. Holy Cross High Sch., 4 F.3d 166, 169 (2d Cir.1993).

For the clear statement rule to apply here in defendants’ favor, we would therefore need to conclude (1) that applying § 1973 to prisoner disenfranchisement laws would alter the constitutional balance between the States and the Federal Government and (2) that Congress has not made its intention to alter that balance unmistakably clear. B. Threshold Question: Does the Clear Statement Rule Apply? The threshold question to be confronted is whether the clear statement rule applies here at all.

Plaintiffs forcefully argue that the clear statement rule only guides our statutory construction when the statutory language is ambiguous, relying on Gregory and post -Gregory decisions by the Supreme Court, and insist that the broad language of the Voting Rights Act is not ambiguous. We are not persuaded by plaintiffs’ arguments.

The Gregory Court stated, in describing the operation of the clear statement rule, that “we must be absolutely certain that Congress intended such an exercise [of legislative power],” Gregory, 501 U.S. at 464, 111 S.Ct. 2395, and that “it must be plain to anyone reading the Act that it covers” the issue in question. Id. at 467, 111 S.Ct. 2395. Subsequent to Gregory, the Supreme Court, in BFP v.

Resolution Trust Corp., formulated the analysis as follows: “[t]o displace traditional state regulation ..., the federal statutory purpose must be ‘clear and manifest.’ ” 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). A few years later, the Supreme Court concluded that the clear statement rule did not apply in two cases. In 1997, in Salinas v.

United States, the Court described Gregory as noting that “the principle it articulated did not apply when a statute was unambiguous.” 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The Court stated that “[t]he plain-statement requirement articulated in Gregory ... does not warrant a departure from the statute’s terms. The text of [the statute] is unambiguous on the point under consideration here ....” Id. The next term, the Court decided Pennsylvania Department of Corrections v.

Yeskey, in which it assumed arguendo that the clear statement rule applied and held that “the requirement of the rule is amply met” because the statute was unambiguous. 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). These statements indicate that the clear statement rule does, not require courts engaged in statutory

interpretation to search for a construction of the statute that will not affect the federal balance, but rather, reveal the canon to be a default rule: when a particular construction of a statute would alter the federal balance, to the extent there is any doubt about whether Congress intended that construction, courts should assume that Congress did not mean to alter the federal balance. When the terms of a statute admit of no uncertainty, the statute, of course, serves as its own clear statement.

In other words, a clear statement is only necessary when the statute does not itself constitute a clear statement on the relevant issue. Therefore, we will apply the clear statement rule when a statute admits of an

interpretation that would alter the federal balance but there is reason to believe, either from the text of the statute, the context of its enactment, or its legislative history, that Congress may not have intended such an alteration of the federal balance. The Court recently addressed the clear statement rule in a different context, but in terms that shed light on its operation here. Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005).

Discussing the “internal affairs” clear statement rule, which concerns “the presumption against applying general statutes to foreign vessels’ internal affairs,” id. at 2178, the plurality opinion noted that “[i]mplied limitation rules avoid applications of otherwise unambiguous statutes that would intrude on sensitive domains in a way that Congress is unlikely to have intended had it considered the matter,” id. at 2182 (plurality opinion of Kennedy, J.) (emphasis added), and that “[t]hese clear statement rules ensure Congress does not, by broad or general language, legislate on a sensitive topic inadvertently or without due deliberation.” Id. (emphasis added).

Though the Spector opinion nowhere cites the Gregory case, we note the striking similarity of the language used to describe the clear statement rule in these two areas, with both identifying the “sensitivity” of the area as the triggering condition for the clear statement rule.

See Gregory, 501 U.S. at 461, 111 S.Ct. 2395 (“In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.”) (citations and internal quotation marks omitted) (emphasis added).

We thus read Spector as providing persuasive authority on the operation of the clear statement rule in the present context as well and as demonstrating that “broad or general language” — as the language of § 1973 might be described — does not necessarily constitute an unambiguous statement. For the reasons discussed above, we believe Congress’s intent regarding the coverage of felon disenfranchisement provisions by the Voting Rights Act is, at the very least, uncertain, despite the “broad and general language” used in that statute.

Given the “sensitive topic” at issue, we would expect Congress to have specified that felon disenfranchisement provisions are covered by the Voting Rights Act if that were its intent. Inasmuch as Congress did not do so — and the evidence of Congressional intent suggests that Congress did not in fact intend to cover such provisions — we believe that the statute is sufficiently ambiguous for the clear statement rule to be applied here. C.

Application of the Clear Statement Rule In applying the clear statement rule, we must first decide whether bringing felon disenfranchisement laws within the scope of the Voting Rights Act — as plaintiffs ask us to do — would “alter the usual constitutional balance between the States and the Federal Government.” Gregory, 501 U.S. at 460, 111 S.Ct. 2395 (internal quotation marks omitted).

As a preliminary matter, plaintiffs argue that the application of the Voting Rights Act to felon disenfranchisement provisions could not affect the “federal balance” because that balance was already changed by the passage of the Fourteenth and Fifteenth Amendments, and the sole task of the Voting Rights Act is to effectuate those constitutional provisions. Consequently, plaintiffs assert that bringing their claim within the scope of the VRA would not alter the federal balance. We do not find this argument persuasive, for, while it undoubtedly rings true for the Voting Rights Act in general,

Section 2 of the Fourteenth Amendment explicitly leaves the federal balance intact with regard- to felon disenfranchisement laws specifically. See U.S. Const. amend. XIV, § 2 (“[W]hen the right to vote at any [federal] election ... is denied to any of the male inhabitants of [a] state ... or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced ....”) (emphasis added).

Therefore, extending the coverage of the Voting Rights Act to these provisions would introduce a change in the federal balance not contemplated by the framers of the Fourteenth Amendment. We have little difficulty concluding that application of the Voting Rights Act to prisoner disenfranchisement provisions like that of New York would effect a change in the federal balance.

These laws, applying as they do only to currently incarcerated felons and parolees, implicate no less than three important state interests: (1) the regulation of the franchise; (2) the State’s authority to craft its criminal law; and (3) the regulation of correctional institutions. We address each of these interests in turn.

There is no question that regulation of the franchise is an important state interest and that interfering with a State’s power to govern this area would disrupt the federal balance. “No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of them own machinery for filling local public offices.” Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Black, J.).

In deciding that the Voting Rights Act did not apply to felon disenfranchisement provisions like that of Florida, the Eleventh Circuit drew an analogy to Gregory v. Ashcroft, which had addressed whether state judges could be subject to the provisions of the Americans with Disabilities Act and had concluded that “the authority of the people of the States to determine the qualifications of their most important government officials ... lies at the heart of representative government.” 501 U.S. at 463, 111 S.Ct. 2395.

Judge Kravitch, writing for the Eleventh Circuit en banc, noted that “[i]f defining the qualifications of important government officials lies at the heart of representative government, then surely defining who decides what those qualifications will be is equally important.” Johnson, 405 F.3d at 1232 n. 35.

Indeed, as Judge Mahoney stated the last time we considered this question, "[t]he states have the primary responsibility for regulating the times, places, and manner of conducting federal elections, and even more obviously for regulating elections to state office.” Baker, 85 F.3d at 931 (opinion of Mahoney, J.) (citation omitted). We agree with each of these formulations. Second, the State of New York has made clear that its statute, § 5-106, constitutes an integral part of its criminal and penal systems.

The New York statute, which formerly disenfranchised felons for life, was amended in 1971 to reach only currently incarcerated felons and parolees. See N.Y. Election Law § 5-106. The Bill Memorandum accompanying the amendment focused on the penal goals of the measure and justified the amendment by specifying that a primary concern of the penal system was “the rehabilitation of the offender” and that “[i]t is inconsistent with the general philosophy of corrections to continue punishment after a person has accounted.” Bill Memorandum (Feb. 5, 1971), reprinted in Bill Jacket for eh. 310 (1971), at 3.

The Model Penal Code likewise considers prisoner disenfranchisement provisions an integral part of the criminal law. See Model Penal Code § 306.3 (proposed official draft 1962). It is undisputed that “[ujnder our federal system, the States possess primary authority for defining and enforcing the criminal law.” United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (internal quotation marks omitted). The Supreme Court has acknowledged and restated on numerous occasions “the States’ sovereign power to punish offenders.” Engle v.

Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also, e.g., Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (same); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (same). Accordingly, applying the Voting Rights Act to prisoner disenfranchisement provisions would intrude on New York’s “sovereign power to punish offenders” and would thus alter the federal balance. Third, as a related yet distinct matter, the State has a powerful interest in the administration of its prisons.

Indeed, “[o]ne of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task.” Procu-nier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)). The Supreme Court has gone so far as to say that “ ‘[i]t is difficult to imagine an activity in which a State has a stronger interest.’ ” Yeskey, 524 U.S. at 209, 118 S.Ct. 1952 (quoting Preiser v.

Rodriguez, 411 U.S. 475, 491, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Inasmuch as New York’s prisoner disenfranchisement provision is limited to those confined in penal institutions and on parole, applying the Voting Rights Act to the provision would surely affect the State’s powers in this area as well. In light of these three separate compelling state interests, we have little difficulty concluding that construing the VRA to encompass prisoner disenfranchisement provisions like that of New York would unquestionably alter the federal balance.

Accordingly, we proceed to the second prong of the clear statement test, which requires us to determine whether Congress has clearly signaled its intent to alter the federal balance by subjecting state prisoner disenfranchisement laws to the provisions of the Voting Rights Act. D. Has Congress Made A Clear Statement?

As discussed at greater length above, our review of the legislative history of both the 1965 enactment and 1982 revision of the Voting Rights Act as well as our examination of other proposed legislation on this issue demonstrate Congress’s lack of intent to include felon disenfranchisement provisions in the coverage of the Voting Rights Act, and compel us to conclude that Congress unquestionably did not manifest an “unmistakably clear” intent to include felon disenfranchisement laws under the VRA.

As a result, we hold that the requirements of the clear statement rule are not met, and we will accordingly not construe the Voting Rights Act to reach these laws. We therefore hold that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions like that of New York because (

a) Congress did not intend the Voting Rights Act to cover such provisions; and (

b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we conclude that plaintiffs’ vote denial claim, which seeks to challenge New York’s prisoner disenfranchisement statute under the Voting Rights Act, must be dismissed and the judgment of the District Court must be affirmed. IV.

Vote Dilution Claim As noted above, plaintiffs have also raised a vote dilution claim based on “the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction.” In light of our conclusion that the Voting Rights Act does not encompass felon disenfranchisement provisions and that plaintiffs thus cannot state a vote denial claim under the statute, it is clear that plaintiffs also cannot state a claim for vote dilution based on the assertion that the denial of the vote to incarcerated felons and parolees dilutes the voting strength of minority communities.

Accordingly, this claim is likewise dismissed, and the judgment of the District Court is affirmed. It is unclear whether plaintiffs’ vote dilution claim also encompasses a claim on behalf of plaintiffs who are neither incarcerated nor on parole, that their votes are “diluted” because of New York’s apportionment process, see N.Y. Const. art. III, § 4, which counts incarcerated prisoners as residents of the communities in which they are incarcerated, and has the alleged effect of increasing upstate New York regions’ populations at the expense of New York City’s.

Plaintiffs’ complaint does not raise this claim explicitly, though it is briefly alluded to in their submissions before this Court. See Plaintiffs’ Compl. ¶ 93 (“ § 5-106(2) of New York Election Law serves to dilute the voting strength of Blacks and Latinos and certain minority communities in New York State ... in violation of

section 2 of the Voting Rights Act, 42 U.S.C. § 1973.”); Pet’rs’ Br., at 37-38 (“New York State’s policy and practice of using Census Bureau data for Congressional, state legislative, and certain municipal redistricting whereby prisoners’ residence is assigned to their prison rather than to the prisoners’ home address distorts the principle of ‘one person, one vote’ and dilutes the voting strength of prisoners’ home communities .... ”).

Inasmuch as this question was neither considered by the District Court nor briefed by defendants, we intimate no view on the question and remand to the District Court to consider whether plaintiffs have indeed properly raised the claim, and, if so, to rule on the merits of the claim. Conclusion For the reasons stated above, we conclude that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions such as that of New York because (

a) Congress did not intend the Voting Rights Act to cover such provisions; and (

b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we dismiss plaintiffs’ Voting Rights Act claims challenging New York Election Law § 5-106. The judgment of the District Court is Affirmed and the cause is remanded to the District Court for further proceedings consistent with this opinion. . The Hayden plaintiffs raise a number of other constitutional and statutory claims, which are not before the en banc court and which will be considered by a three-judge panel in the normal course. .

Because it dismissed all of plaintiffs’ claims on the merits, the District Court denied plaintiffs’ motion for class certification as moot. Hayden, 2004 WL 1335921, at *8 n. 5, 2004 U.S. Dist LEXIS 10863, at *24 n. 5. . New York Election Law § 5-106(2)-(5) states: 2. No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.

The governor, however, may attach as a condition to any such pardon a provision that any such person shall not have the right of suffrage until it shall have been separately restored to him. 3. No person who has been convicted in a federal court, of a felony, or a crime or offense which would constitute a felony under the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States, or his maximum sentence of imprisonment has expired, or he has been discharged from parole. 4.

No person who has been convicted in another state for a crime or offense which would constitute a felony under the laws of this state shall have the right to register for or vote at any election in this state unless he shall have been pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state, or his maximum sentence has expired, or he has been discharged from parole. 5. The provisions of subdivisions two, three and four of this

section shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended. .Although § 5-106 disenfranchises felons on parole as well as incarcerated felons, for ease of reference we refer to the class of felons disenfranchised by § 5-106 as "incarcerated felons.” Cf. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir.2002) (noting that a convict released on parole is still treated for habeas purposes as if he were "in custody”) (quoting Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)). .

Before its amendment in 1982, § 1973 provided: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” City of Mobile v. Bolden, 446 U.S. 55, 60, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). . As we note below, the New York provision at issue here is considerably narrower in its reach than those of Florida and Washington, at issue in Johnson and Farrakhan, respectively.

In referring generally to statutes that deny the franchise to felons (during and after incarceration and parole), we will refer to "felon disenfranchisement statutes”; in referring to New York’s narrower version of the species, we refer to its "prisoner disenfranchisement statute.” . We note that, despite plaintiffs' claim that racial discrimination infects the whole of the criminal justice system such that non-racially motivated felon disenfranchisement laws violate the VRA, counsel for plaintiffs insisted at oral argument that they do not allege any •discrimination in plaintiffs’ particular convictions.

They did well not to make this claim, for such an assertion might have raised questions under the doctrine of Heck v.

Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which provides that "[i]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Id. at 486-87, 114 S.Ct. 2364.

Here, clearly, none of the plaintiffs could make this showing. . Judge Parker's dissent emphasizes that because defendants prevailed below on a motion for judgment on the pleadings and because "[tjhere is no substantive record in this case,” "[njone of us knows what reality — if any— exists behind these allegations.” Dissent of Judge Parker at 344. The dissent further underscores that "each of the other circuits that has wrestled with this issue has done so on the basis of a fully-developed

summary judgment record, not simply on the pleadings.” Id. at 344. These observations have no bearing on the question whether Congress intended the Voting Rights Act to encompass prisoner disenfranchisement statutes such as the one at issue here. Accordingly, notwithstanding the dissent's effort to construct a hypothetical record based on its own suppositions about what is or is not "beyond the realm of possibility in New York,” id. at 345, we focus on the question of statutory

interpretation presented. . Contrary to the suggestion of our colleagues in dissent, we do not rely on the Fourteenth Amendment for the proposition that felon disenfranchisement statutes are "always constitutional” or somehow "immune from congressional regulation.” Dissent of Judge Parker, at 345. Nor do we suggest that the Voting Rights Act was enacted pursuant to Congress’s power under the Fourteenth Amendment, rather than the Fifteenth Amendment. Cf.

Dissent of Judge Parker at 350 ("The majority fails to appreciate that the operative provisions of the VRA were enacted pursuant to Congress’s power under the Fifteenth Amendment.”). Instead, our inquiry into Congressional intent is simply informed by the historic nature of felon disenfranchisement statutes and by the Fourteenth Amendment's explicit approval of such laws. . The Fourteenth Amendment, as interpreted by the Supreme Court, does not completely insulate felon disenfranchisement provisions from constitutional scrutiny.

It is clear, for example, that if a State disenfranchises felons "with the intent of disenfranchising blacks,” that State has run afoul of

Section 1 of the Fourteenth Amendment. See Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (invalidating disenfranchisement provision of Alabama Constitution passed with discriminatory intent). Our conclusion that § 1973 does not encompass prisoner disenfranchisement laws such as that of New York thus does not mean that there is no remedy for laws of this type that were passed with the intent to disenfranchise members of minority groups, as these laws are already unconstitutional under the Fourteenth Amendment. . Va. Const. Art. 3, § 1 (1776); Ky. Const.

Art. 8, § 8 (1799); Ohio Const. Art. 4, § 4 (1802); La. Const. Art. 6, § 4 (1812); Ind. Const. Art. 6, § 4 (1816); Miss. Const. Art. 6, § 5 (1817); Conn. Const. Art. 6, § 2 (1818); Ill. Const. Art. 2, § 30 (1818); Ala. Const. Art. 6, § 5 (1819); Mo. Const. Art. 3, § 14 (1820); N.Y. Const. Art. 2, § 2 (1821); Del. Const. Art. 4, § 1 (1831); Tenn. Const. Art. 4, § 2 (1834); Fla. Const. Art. 6, § 4 (1838); R.I. Const. Art. 2, § 4 (1842); N.J. Const. Art. 2, § 1 (1844); Tex. Const. Art. 7, § 4 (1845); Iowa Const. Art. 2, § 5 (1846); Wise. Const. Art. 3, § 2 (1848); Calif. Const. Art. 2, § 5 (1849); Md. Const.

Art. 1, § 5 (1851); Minn. Const. Art. 7, § 2 (1857); Ore. Const. Art. 2, § 3 (1857); Kan. Const. Art. 5, § 2 (1859); W.Va. Const. Art. 3, § 1 (1863); Nev. Const. Art. 2, § 1 (1864); S.C. Const. Art. 4, § 1 (1865); Ga. Const. Art. 2, § 6 (1868); N.C. Const. Art. 6, § 5 (1868) (cited in Green, 380 F.2d at 450 nn. 4-5). . Our dissenting colleagues dismiss our analysis of the historical origins of felon disenfranchisement statutes as mere "[hjistorical anecdotes,” Dissent of Judge Parker at 355, likening such statutes to other longstanding voting qualifications such as literacy tests and poll taxes.

Yet we do not suggest that felon disenfranchisement laws fall outside the scope of the Voting Rights Act simply because they are deeply rooted in American history and in the Western tradition more broadly. Rather, we argue that it is unlikely that Congress would have invalidated such laws— which have been widely-used since the origins of the Republic — without any discussion of the matter. By contrast,

section 4(

c) of the Voting Rights Act explicitly prohibits literacy tests by defining the statutory term ”[t]est or device” to mean "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 42 U.S.C. § 1973b(c). As noted, this provision specifically exempts felon disenfranchisement provisions.

Likewise, in 1964, a year prior to Congress's passage of the Voting Rights Act, poll taxes had been expressly forbidden by the 24th Amendment, which provides, in relevant part, that "[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1.

The explicit treatment, either in the Voting Rights Act or in the Constitution, of other similarly longstanding and widely-practiced voting qualifications only serves to confirm our view that Congress did not amend the Voting Rights Act in a way that brought felon disenfranchisement laws within its purview. . Our dissenting colleagues acknowledge that Committee Reports such as these " 'represente] the considered and collective understanding of those Congressmen involved in drafting and studying the proposed legislation.' " Dissent of Judge Parker, at 354 (quoting Zuber v.

Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969)). . In criticizing our reference to this statement by Senator Tydings — the only floor statement to which we cite — the dissent quotes selectively from volume 2A of "Sutherland Statutory Construction § 48.13.” In fact, the authority on which the dissent relies concludes: Now the federal courts hold that statements by any members during legislative debates may be considered in the

interpretation of a statute where they show a common agreement in the legislature about the meaning of an ambiguous provision. Statements made by individual legislators during floor debates are also considered, along with information about contemporary conditions and events, when they establish what problems or evils the legislature was trying to remedy. 2A C. Sands, Sutherland Statutory Construction § 48.13 at 356 (5th ed.1992). . An example of the viewpoint of proponents of the legislation was offered by John A. Buggs, the Staff Director of the U.S. Commission on Civil Rights, at the hearing on H.R. 9020. Mr.

Buggs stated: We support H.R. 9020 because the denial of the right to vote to citizens who have been convicted of a criminal offense remains as one of the last major obstacles to the full enjoyment of that right by all citizens of the United States. Through passage of constitutional amendments subsequently ratified by the States, Congress has eliminated voter qualifications based on race, sex, and wealth and has extended the right to vote to all citizens 18 years old or older.

Through passage of the Voting Rights Act of 1965 and the Voting Rights Amendments of 1970 the Congress has enacted legislation whose objective is the enforcement of these constitutionally protected rights. It is now most appropriate for Congress to and the denial of the right to vote to former criminal offenders. Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 93 d Cong. 10 (1974) (remarks of John A. Buggs, Staff Director, U.S. Commission on Civil Rights) (emphasis added).

These remarks, and those of other proponents of H.R. 9020, leave no doubt of the general understanding that the Voting Rights Act did not encompass felon disenfranchisement laws, and the course of the hearings indicates that the Subcommittee shared this understanding. . After the enactment of home rule legislation for the District of Columbia in 1974, which gave the D.C. Council plenary powers, subject to Congressional review, see D.C.Code Ann. § 1-207.52, § l-206.02(c)(l), the D.C. Council revised the election code to disenfranchise only prisoners, rather than felons who had completed their sentences.

Id. §§ 1-1001.02(7)(A)-(B); 1-1001,07(k)(1), (3)-(4). . In his separate dissent, Judge Calabresi concedes that the Voting Rights Act did not erect “a per se ban on felon disenfranchisement,” but insists that "[njothing in the majority opinion ... gives a single reason to suggest that Congress did not intend the Voting Rights Act to do what its plain language says and bar felon disenfranchisement statutes that result in racial discrimination." Dissent of Judge Calabresi, at 363-64 (emphasis in original).

Our argument cannot be reduced, however, to the assertion that the 1982 Congress could not have intended to expand the Voting Rights Act to encompass felon disenfranchisement provisions simply because, in 1965, § 4(

c) of the Voting Rights Act included no categorical ban on felon disenfranchisement statutes, or because more recent congressional actions presuppose the general validity of felon disenfranchisement statutes.

Rather, taking account of the longstanding acceptance of felon disenfranchisement laws and the fact that Congress’s only recorded decisions respecting such laws in the context of the Voting Rights Act were designed to assuage concerns about their continued vitality, we conclude that Congress could not have intended in 1982 to authorize challenges to such laws on the basis that they "result in racial discrimination” without some more specific indication to that effect. See note 19, post.

Indeed, in light of the historic treatment of such laws discussed above, Judge Calabresi's analogy to at-large districts, which are neither constitutionally sanctioned nor explicitly excluded from a separate

section of the Act, is entirely inapposite. . In this regard, we note that the 1982 revisions focused only on the means of proving a violation' — changing subsection (

a) from "to deny or abridge the right of any citizen of the United States to vote on account of race or color” to “in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” and adding subsection (b). The 1982 revisions did not address the first part of subsection (a), dealing with the voting provisions subject to the Act, and there is no basis upon which we could conclude that the intent of the 1982 Congress with regard to coverage was any different than that of the 1965 Congress. .

Our dissenting colleagues oversimplify matters when they argue that "[T]o hold that Congress did not intend the VRA to cover felon disenfranchisement statutes is to hold that Congress actually intended to allow some forms of race-based voter disenfranchisement.” Dissent of Judge Parker at 357.

Congress’s decision not to extend the Voting Rights Act to felon disenfranchisement stat-ufes can surely not be construed as Congress’s intent to permit "race-based voter disenfranchisement.” First, by the dissent's own admission, it remains unproven whether felon disenfranchisement statutes indeed constitute "race-based voter disenfranchisement” in New York. Second, felon disenfranchisement statutes, while exempt from the reach of the VRA, may still be subject to Fourteenth Amendment challenge. See note 11, ante. .

Plaintiffs argue that Yeskey governs this case, as the Court, in addressing whether the Americans with Disabilities Act (''ADA”) covers inmates in state prisons, noted there that “the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt.” Yeskey, 524 U.S. at 209, 118 S.Ct. 1952. As such, the Court concluded that the general language of the ADA constituted a sufficiently clear state-nient of Congress's intent for the purposes of the clear statement rule. We believe Yeskey is easily distinguishable from this case.

There was no reason to believe that Congress, in enacting the ADA, had given any thought whatsoever to the coverage of prisons. In light of the broad language of the ADA, and the absence of any exception from its coverage of state institutions, there was no basis on which to conclude that Congress had meant to exempt prisons. The present situation is substantially different. Here, for the reasons stated at length above, there is a significant amount of evidence that Congress did not intend the VRA to encompass felon disenfranchisement laws, and, at the very least, was convinced it had not done so.

Accordingly, the broad language of the VRA notwithstanding, it is not entirely clear that Congress meant to alter the federal balance by encompassing felon disenfranchisement laws within the coverage of the VRA, and the clear statement rule must therefore be applied. . This part of Justice Kennedy's opinion for the Court was joined by Justices Stevens, Souter, and Thomas. .

By contrast with New York's prisoner disenfranchisement provision, felon disenfranchisement provisions like that of Florida, which permanently denies the vote to those convicted of felonies, may not as clearly implicate the State's interest in the administration of prisons. We express no opinion on the legal implications, if any, that follow from this difference. .

Because we conclude that the Voting Rights Act should not be construed to apply to prisoner disenfranchisement provisions like that of New York, we need not address the constitutional avoidance canon relied upon by the Eleventh Circuit in its decision in Johnson. We express no view on whether applying the protections of the Voting Rights Act to prisoner disenfranchisement provisions gives rise to any constitutional difficulties under the Fourteenth or Fifteenth Amendments. .

The United States Census Bureau counts inmates of correctional institutions as residents of the institution, and notes the "usual residence" at which it counts people "is not necessarily the same as the person's voting residence or legal residence." U.S. Census Bureau, Plans and Rules for Taking the Census, at §§ 2, 11, available at http://www. census.gov/population /www/censusdata/ resid_rules.html (last viewed Sept. 26, 2005); see also Dist. of Columbia v. United States Dept. of Commerce, 789 F.Supp. 1179, 1180 (D.D.C.1992).