Yesterday, we filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in a case about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urge the court to affirm the lower court decision’s that declared Florida’s “pay-to-vote” system unconstitutional.  The brief draws on our new 50-state research report to show that Florida’s approach to this issue is an outlier among the states.

We were ably represented by Andrew L. Frey, Scott A. Chesin, and Luc W. M. Mitchell of Mayer Brown and very much appreciate their work.

Our brief is a contribution to high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, Amendment 4, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago.  However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.

After a group of voters and organizations sued, the federal district court held that Florida’s scheme is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment as applied to all those who are unable to pay legal financial obligations (“LFOs”), a large percentage of the disenfranchised population.  (A preliminary ruling to this effect, which applied only to 17 individual plaintiffs, was upheld by a panel of the Eleventh Circuit at an earlier stage of the case).  The district court also held that conditioning voting rights on payment of fees and costs is unconstitutional under the Twenty-Fourth Amendment’s prohibition on “any poll tax or other tax.”

The district court ordered a process to allow people to register and vote unless the state can show precisely what each person owes and make a credible assertion that they have the ability to pay the amount.  However, the Eleventh Circuit stayed the order pending appeal and the Supreme Court declined to lift the stay, with three justices dissenting in a written opinion.

The case is currently on appeal in the Eleventh Circuit, where the full court has agreed to hear the case en banc.  An amicus brief filed by Texas, joined by seven other states, asserts that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question” what Texas deems “th[e] widespread practice” of “permitting re-enfranchisement [only] for felons who have paid their debts to society.” Among the states whose rules Texas considers “similar” to Florida’s are states it claims “might” condition re-enfranchisement on payment of LFOs.  We argue that Texas’ claims are “a dramatic and misleading exaggeration.”

In short: to the extent this Court is interested in learning what effect its ruling would have on the laws of other states if it were to be applied nationally, it is important that the facts be correct. And as we demonstrate in detail below, Texas gets the facts wrong. This Court should not hesitate to affirm the district court’s conclusion that Florida’s system is both unusual and unconstitutional.

Our brief draws on our 50-state research to argue that only two other states, Alabama and Arkansas, share the specifics of Florida’s approach, and that a decision invalidating Florida’s regime would not, even if applied nationally, directly impact more than a handful of states’ reenfranchisement laws.

Our brief also highlights the consistent and accelerating national legislative trend toward expanding the franchise for people with felony convictions.  This trend, we argue, is consistent with the district court’s conclusion that had Florida voters known that the financial payment requirement would be narrowed under the federal constitution, they likely “would have adhered to the more generous spirit that led to the passage of the amendment,” and passed Amendment 4 nevertheless.

The appeal is scheduled for oral argument on August 18, ironically the day of Florida’s primary.

Our amicus brief is available here.  It includes as an appendix an abbreviated version of our research report.