Florida may not prohibit ex-felons from voting merely because they can’t afford to pay court fines and fees, the 11th U.S. Circuit Court of Appeals ruled on Wednesday. The court’s decision marks a blow to Republican efforts to hobble Amendment 4, a constitutional amendment restoring suffrage to more than 1 million formerly incarcerated Floridians. The opinion is also one of the most vehement condemnations of wealth-based voter suppression ever issued by a federal court.
Florida’s ex-felons, the court declared, “are not punished in proportion to their culpability but to their wealth—equally guilty but wealthier felons are offered access to the ballot while these plaintiffs continue to be disenfranchised, perhaps forever.” By doing so, the state “unconstitutionally punishes a class of felons based only on their wealth.”
In 2018, nearly 65 percent of Floridians passed Amendment 4, repealing a Jim Crow–era constitutional provision that permanently disenfranchised individuals convicted of a felony. The amendment could have restored the franchise to as many as 1.5 million people. But shortly after it passed, Republican lawmakers sabotaged it, passing a law that compels ex-felons to pay back all fines, fees, and restitution imposed as part of their sentence. (The very conservative Florida Supreme Court affirmed this interpretation of Amendment 4, ruling, dubiously, that voters who approved the law knew that a “sentence” included monetary penalties.) Florida is a pioneer of “cash-register justice,” funding its courts through a mind-boggling array of fees that few individuals can afford to pay in full. If upheld, the GOP law, widely derided as a poll tax, would strip suffrage from a majority of people enfranchised by Amendment 4.
Seventeen voters, represented by a coalition of advocacy groups led by the ACLU, filed suit, alleging a violation of their constitutional rights. A federal district court found the law defective, directing Florida officials to let the 17 plaintiffs vote if they could prove their inability to pay their court-imposed financial obligations. A three-judge panel for the 11th Circuit agreed on Wednesday in Jones v. DeSantis. Its unanimous, unsigned per curiam opinion reads as a sharp rebuke to the GOP’s quest to undermine Amendment 4.
Jones is a tricky case because while voting is a fundamental right, the 14th Amendment expressly permits states to disenfranchise felons. Moreover, the Supreme Court has ruled that wealth-based discrimination is not, by itself, constitutionally suspect. But, as the 11th Circuit noted, SCOTUS has also held that wealth classifications may violate equal protection when they are applied in “the administration of criminal justice and access to the franchise.” That, the court noted, is precisely what the state did here. “Florida has implemented a wealth classification,” the court explained, “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.” And this “differential punishment on account of wealth strikes at the heart” of the Constitution’s “equality principle.”
“The long and short of it,” the court concluded, “is that once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection.” Republicans failed that duty here. Their law flouts equality principles, because it punishes destitute ex-felons “more harshly” than wealthier people “who committed precisely the same crime.” Some individuals receive a more severe punishment not because they are more culpable but because they don’t have as much cash on hand. Florida cannot penalize poor individuals by revoking their fundamental rights.
Shortly after Wednesday’s decision came down, Florida Gov. Ron DeSantis, a Republican, announced through his communications director that he would appeal it to the 11th Circuit en banc (with every active judge sitting). Donald Trump recently flipped that court, creating a majority of Republican appointees. But there are two wrinkles that make DeSantis’ success less of a sure thing. First, two of Trump’s appointees, Barbara Lagoa and Robert Luck, participated in oral arguments while serving on the Florida Supreme Court in a case questioning the scope of Amendment 4. Both judges, who expressed strong opinions about the law during those arguments, should recuse themselves from Jones to forestall questions about their impartiality. If they do so, the court will be evenly divided between Democratic and GOP appointees.
But even if Lagoa and Luck participate, the case may still deadlock. Senior Judges Stanley Marcus and R. Lanier Anderson III, who joined the opinion in Jones, can participate if a majority of the court votes to rehear the case en banc, because they sat on the original panel. Presuming Marcus and Anderson join the five Democratic appointees, the court could split 7–7. A tie would leave the district court opinion in place, which protected the plaintiffs’ right to vote. Whoever loses will probably appeal to the Supreme Court, which may decide to duck such a politically charged case, especially as the 2020 election draws near. If SCOTUS does hear Jones, it’s hard to see the conservative majority standing up for an expansion of voting rights, though stranger things have happened.
The likeliest possibility, then, is probably the simplest: Neither the full 11th Circuit nor SCOTUS takes the case, and the district court must implement Jones in time for the next election. Although the decision currently applies only to the 17 plaintiffs, the district court will almost certainly expand its scope to protect all ex-felons who can’t afford to pay court-imposed fines and fees. Those individuals will then need to prove their indigency to regain their right to vote. The process will not be as easy as it was supposed to be under Amendment 4. But it will be better than the Jim Crow–style ban that Florida Republicans are still fighting to resurrect.
