Democrats and civil rights groups are seething over a court ruling last week that upheld a Florida law requiring indigent former felons to pay off outstanding court fees as a precondition to having their voting rights restored, a policy critics compare to a modern-day version of the Jim Crow-era poll tax.
The 6-4 opinion by the Atlanta-based 11th U.S. Circuit Court of Appeals on Friday was expected to disproportionately burden the franchise of African Americans with felony records in Florida, where Joe BidenJoe BidenCrowd aims ‘lock him up’ chant at Obama during Trump rally Biden campaign plans to run ad during every NFL game until Election Day LA mayor condemns protesters shouting ‘death to police’ outside hospital treating ambushed officers MORE, the Democratic presidential nominee, is running neck and neck with President TrumpDonald John TrumpCrowd aims ‘lock him up’ chant at Obama during Trump rally Nevada governor: Trump ‘taking reckless and selfish actions’ in holding rally Michigan lieutenant governor blasts Trump coronavirus response: He ‘is a liar who has killed people’ MORE.
“This decision takes away voting rights from 800,000 Floridians, 2/3s of them Black. It’s a modern day poll tax,” Rep. Adam SchiffAdam Bennett SchiffSenate panel seeks documents in probe of DHS whistleblower complaint Hillicon Valley: Dems seek to expand DHS probe after whistleblower complaint | DHS rejects House subpoena for Wolf to testify | Facebook rolls out new features for college students Democrats seek to expand DHS probe after whistleblower complaint MORE (D-Calif.) wrote in a tweet. “When we vote in November, we vote to end their disenfranchisement.”
As election-related lawsuits pile up, legal experts say the court fight over the controversial Florida law has produced perhaps the most consequential ruling to date given Florida’s role as a swing state and the large number of affected would-be voters.
The Friday ruling, which represented a bitter disappointment for voting rights activists, comes less than two months before the November elections and just weeks ahead of the state’s Oct. 5 voter registration deadline.
“This ruling runs counter to the foundational principle that Americans do not have to pay to vote,” Julie Ebenstein, a senior staff attorney with the American Civil Liberties Union’s (ACLU) Voting Rights Project, said in a statement. “The gravity of this decision cannot be overstated. It is an affront to the spirit of democracy.”
The ACLU, which is backing the plaintiffs along with other civil rights advocacy groups, estimate that around 774,000 felons in Florida owe outstanding court debt. By some estimates, most of the affected would-be voters are likely to lean Democratic.
The legal dispute traces back to a 2018 amendment to Florida’s constitution, known as Voting Restoration Amendment 4, that restored voting rights to those with most types of felony convictions who had completed “all terms” of their sentences.
Florida Gov. Ron DeSantisRon DeSantisFlorida Supreme Court blocks DeSantis justice pick The politically neglected minority: Asian Americans and COVID-19 House panel details ‘serious’ concerns around Florida, Georgia, Texas, Wisconsin elections MORE (R) the following year signed into law a bill that obligated Floridians with felony records to settle all outstanding court debt before their voting rights were reinstated — even if they were unable to afford court fees and other legal financial obligations.
Several poor, court-indebted felons who had otherwise served out their sentences asked a federal court to strike down the payment requirement on constitutional grounds.
In May, a federal trial judge in Florida agreed. U.S. District Judge Robert Hinkle, a Clinton appointee, struck down the payment component as unconstitutional.
But on July 1, just more than two weeks before the voter-registration deadline for the state’s primary, the 11th Circuit agreed to halt the lower court ruling while an appeal played out, which sparked a petition to the U.S. Supreme Court.
The conservative-majority Supreme Court in July declined to intervene in the case. In a fiery dissenting opinion joined by fellow liberal justices Ruth Bader GinsburgRuth Bader GinsburgTrump’s Supreme Court list reveals influence of Clarence Thomas President Nancy Pelosi? Don’t underestimate what she might do in office Trump unveils Supreme Court list, includes Cruz and Cotton MORE and Elena KaganElena KaganSupreme Court denies push to add Green Party candidates to Montana ballot Stakes high for Supreme Court as Trump battles for reelection LeBron James’ group to donate 0K to pay fines for ex-felons seeking to vote in Florida MORE, Justice Sonia SotomayorSonia SotomayorSupreme Court refuses to halt execution of Navajo inmate amid tribe’s objections Stakes high for Supreme Court as Trump battles for reelection Voters should channel the Black Lives Matter energy at the polls MORE accused the majority of “continu[ing] a trend of condoning disfranchisement.”
“Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money,” wrote Sotomayor, calling the policy a “voter paywall.”
The Friday ruling formally overturned the lower court, thereby upholding the payment requirement.
Writing for the majority, Chief Judge William Pryor, a George W. Bush appointee, rejected the argument that the law amounted to a poll tax, which is prohibited by the civil rights era’s 24th Amendment to the Constitution, or that it ran afoul of other constitutional protections.
“That criminal sentences often include financial obligations does not make this requirement a ‘capricious or irrelevant factor,’ ” Pryor wrote. “Monetary provisions of a sentence are no less a part of the penalty that society imposes for a crime than terms of imprisonment. Indeed, some felons face substantial monetary penalties but little or no prison time.”
A spokesman for DeSantis praised the ruling as fair-minded.
“All terms of a sentence means all terms,” Fred Piccolo said in a statement to media outlets. “There are multiple avenues to restore rights, pay off debts and seek financial forgiveness from one’s victims. Second chances and the rule of law are not mutually exclusive.”
But in one of four blistering dissenting opinions, Judge Adalberto Jordan, an Obama appointee, wrote: “I doubt that today’s decision — which blesses Florida’s neutering of Amendment 4 — will be viewed as kindly by history.”
After Friday’s ruling, the Campaign Legal Center (CLC), which represents the challengers, blasted the court’s reasoning.
“This is a deeply disappointing decision,” Paul Smith, vice president at CLC, said in a statement. “While the full rights restoration envisioned by Amendment 4 has become less likely to be realized this fall, we will continue this fight for all Florida voters, so the full benefits of Amendment 4 will someday be realized.
“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” he added. “Nobody should ever be denied their constitutional rights because they can’t afford to pay fines and fees.”
When asked Monday how the CLC would respond, a spokesman said the group is “actively considering our options.”
Election law experts say it’s unlikely that the Supreme Court would take the case before the fast-approaching election.
Rick Hasen, a law professor at the University of California, Irvine, and an election law expert who has tracked the Florida case closely, underscored the stakes of the court’s decision.
“This case is perhaps the most consequential when it comes to election outcomes,” he wrote earlier this summer on the Election Law Blog. “Florida is a perennial swing state and the number of voters affected by this ruling is significant.”
Although the legal challenge has hit a roadblock, fundraising efforts are underway to pay Florida felons’ outstanding court fines and fees so their sentences can be completed and their voting rights restored. As of Monday, close to $4 million of the $6.1 million goal had been raised to help cover costs for several thousand would-be voters.