Last week, we published our amicus brief in an appeal about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urged the Eleventh Circuit to affirm a district court decision that Florida’s “pay-to-vote” system is unconstitutional, relying on our research report showing that few states have as restrictive a scheme as Florida’s.  Other groups also weighed in, including 19 states and D.C. and several organizations that draw on CCRC’s research to argue in favor of the decision below.  CCRC board members Jack Chin and Nora Demleitner joined a group of 93 law professors who also argued in favor of the district court’s determination that Florida’s scheme is unconstitutional.

These amicus briefs are part of high-stakes federal litigation over Florida’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 state constitutional amendment 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.”

To rebut this argument, an amicus brief from a coalition of 20 U.S. jurisdictions, led by the District of Columbia and Illinois, draws upon CCRC’s 50-state survey of financial barriers to voting.  The brief makes clear that: “only two States in addition to Florida indefinitely deny the right to vote to any returning citizen who has not fully paid his or her LFOs. The vast majority of States have not imposed such a severe burden, and many in recent years have taken additional measures to expand the franchise and facilitate restoration.”  The brief contends, therefore, that the district court’s decision “does not forebode a reversal of the clear trend among the States toward re-enfranchisement of former felons or endanger the many kinds of state systems that promote restoration of the right to vote.”  (Our brief raises similar arguments.)  The states’ brief also argues that restoring the vote promotes reintegration and public safety, whereas restrictive laws like Florida’s disproportionately harm low-income individuals and  minority communities, without any evidence that they actually promote payment of debt.  Such harm is especially acute in Florida, which has not established a workable system for determining what, if anything, individuals owe.

Another brief for four organizations (the Fines and Fees Justice Center, Cato Institute, R Street Institute and Florida Association of Criminal Defense Lawyers) argues that “Florida knows most of the plaintiffs will never be able to afford to pay these LFOs, and in many instances the state is unable even to calculate the amount owed, but conditions the fundamental right to vote on their payment.”  The brief asserts that Florida’s LFO requirement is “an extreme measure by a state aggressive in imposing LFOs on criminal defendants.  The state’s proliferation of LFOs has kept a substantial number of Floridians in poverty, and the collateral consequences of their felony convictions exacerbate their continued inability to pay their LFOs.”  Documenting how Floridians with felonies struggle to find and maintain employment, or earn enough income to pay off court debts, the brief cites among other things our research that Florida does not restrict private employers from inquiring about criminal history on job applications.

Two members of CCRC’s board—Professors Jack Chin and Nora Demleitner, of the U.C. Davis and Washington & Lee law faculties, respectively—joined 91 other law professors on an amicus brief.  They argue that Florida’s demonstrated failure to implement Amendment 4 in a constitutionally-permissible fashion necessitated the district court’s “fair, necessary, and workable” remedy.  They also argue that even if the appeals court were to find that the district court exceeded its authority in crafting a remedy, Amendment 4 as a whole must be upheld, and unconstitutional aspects related to court debt should be severed.

Additional briefs, including from election administrators and former federal civil rights officials, are available at the Brennan Center’s case page.

The case is scheduled for oral argument in the court of appeals on August 18, ironically the day of Florida’s primary.