Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
Ignoring debate drama to impose vote-related courtroom drama instead.
The 11th Circuit yesterday unanimously shot down Florida’s poll tax targeting ex-prisoners (specifically ex-felons, excepting convictions for murder and sexual violence), whose voting rights Florida citizens restored via a 2018 ballot referendum (“Amendment 4”), which measure passed with 65 percent approval.
The Supreme Court has already found that the 14th Amendment explicitly permits states to deny ex-prisoners the right to vote. However, the same amendment doesn’t require the disenfranchisement of ex-prisoners. Florida’s Constitution did deny ex-prisoners that right to vote, but in 2018 Florida voters passed a ballot referendum that amended its Constitution to restore the right to vote for ex-prisoners “upon completion of all terms of [their] sentence including parole or probation.”
Florida’s GOP legislators acted quickly to counteract the effects of the referendum (demographically speaking, it would chiefly benefit Democrats), passing a law in May 2019 [Fl. Statute § 98.0751, or “SB 7066”] that strained to interpret the phrase “completion of all terms of sentence” contained in the referendum as broadly as possible, namely that it required ex-felons to also pay any outstanding fines, fees, and restitution (“Legal Financial Obligations” or “LFOs”) incidental to their post-prison life before being permitted to register to vote.
Florida, lacking a state incomes tax, funds its courts and other government services through these usually onerous LFOs. Expert for the plaintiffs at trial estimated that approximately 80 percent (or approximately 436,000) of Florida ex-felons had outstanding LFOs and more than a third had at least $1,000 outstanding. Not surprisingly, given the employment options open to the recently imprisoned, many simply can’t pay. And Florida doesn’t allow waivers for the indigent.
In August 2019 Republican Governor Ron DeSantis asked the Florida Supreme Court whether SB 7066 correctly interpreted the ballot referendum to include payment of LFOs as requisite to sentence completion, and the court responded in an advisory opinion that yes, it did.
Seventeen new voters then sued in federal court, arguing, among other things, that the “Legal Financial Obligations” requirement constituted wealth discrimination in violation of the 14th amendment’s equal protection clause, which was the basis upon which the district court ruled in plaintiffs’ favor, granting them an injunction. (Plaintiffs also argued that Florida’s SB 7066 violated the 1st — speech — and 24th — poll tax — amendments, but the district court didn’t touch those, and the appeals court similarly declined.)
The legal question to the 11th Circuit was therefore whether the imposition of LFOs as predicate to the restoration of voting rights bestowed on ex-prisoners amounted to an equal protection clause violation due to its disproportionate impact on the non-wealthy. The 11th Circuit, in a per curiam opinion (unanimous but unsigned by any one judge), said yes, SB 7066’s interpretation of Amendment 4 amounts to an equal protection violation.
How the 11th Circuit got there is interesting. The threshold question for all equal protection cases is which standard of review to employ. If a law targets race, for example, the court views such laws as categorically suspect, meaning that the government must show that it had a compelling interest to justify the law’s passage. At the other end of the spectrum, typically if the law doesn’t implicate “suspect” classifications like race, gender, or national origin, the law can be justified by only a rational basis. Consequently, strict scrutiny analysis tends to strike down those laws implicated and rational basis analysis tends to leave them intact.
Wealth, on its own, is not a “suspect” classification requiring strict scrutiny. But where ability to pay is used to restrict access to voting, it is, reasoned the court, citing MLB v LJ, 519 U.S. 102 (1996) (Mississippi law conditioning a right to appeal in a civil — family law — case on prepayment of fees unenforceable, violated equal protection clause where appellant is indigent), such restrictions require heightened scrutiny.
The Sixth Circuit, in Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010), faced this precise question (re-enfranchisement schemes implicating wealth disparity) and decided that rational basis was the appropriate lens, consequently reaching the opposite result. The 11th Circuit here, nevertheless analyzed the issue under rational basis scrutiny and concluded it didn’t pass muster there either. So what is the ostensible rational basis? The court cites (1) continued punishment; and (2) “shielding the ballot box from those who have manifested antagonism to society’s laws.” The court agrees that deterrence and punishment through the enforcement of fines may constitute rational bases, except where, as here, the plaintiffs are truly indigent and unable to pay.
Since the 11th Circuit unanimously assailed SB 7066 employing rational basis analysis, it’s pretty clear where it was going by page 40 when it finally analyzed under strict scrutiny:
“Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay — that is, it punishes more harshly solely on account of wealth — and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.”
The court then goes on to exhaustively beat down SB 7066 with precedent and statistics.
Per Mark Joseph Stern at Slate (whose summary of the case is probably easier reading than mine, but which I only saw after writing this far, so you’re stuck with me instead), DeSantis plans to appeal “en banc,” meaning he’s going to ask the entire 11th Circuit to hear the case, which is an unusual response to a per curiam opinion. But given that the 11th Circuit just added a few new Trump appointees, DeSantis is probably thinking why not. But as Stern points out, given how two of those appointees participated in the same proceeding while serving on Florida’s Supreme Court, it’s unlikely they’d participate here.
A lot is at stake here, given Florida’s potential swing vote status and the fact that more than half a million voters were re-enfranchised by the Florida voters in 2018. Republicans would greatly prefer that more than 400,000 of those voters continue to sit on the sidelines and remain disenfranchised. An appeal to the Supreme Court is also an option (potentially by either party), even regardless of whether the 11th agrees to hear the case en banc. I’ll not speculate how things might go there except to say that given its politically-charged nature (think of all the Bush v Gore comparisons it would invite), Chief Justice John Roberts would want no part of it, even if the other four conservatives did.
