Jurisprudence

One of Trump’s Top SCOTUS Candidates Thinks Poll Taxes Are Constitutional

Barbara Lagoa auditioned for the Supreme Court by flouting judicial ethics and taking a radical stance against voting rights.

Judge Barbara Lagoa delivers a speech while Florida Gov. Ron DeSantis looks on.
Gov. Ron DeSantis stands behind Barbara Lagoa as she speaks after he named her to the Florida Supreme Court on Jan. 9, 2019, in Miami. Joe Raedle/Getty Images

President Donald Trump has made it clear that he believes virtually any measure that expands voting access is invalid and rigged. And whomever he picks to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court will need to share that view. Shortly after he learned of Ginsburg’s death, Trump told a crowd in North Carolina that he is “counting on the federal court system” to limit how many votes get counted. Perhaps that’s why he is reportedly considering Judge Barbara Lagoa for the seat. Lagoa is not just conservative—she’s also a partisan who flouted judicial ethics to disenfranchise hundreds of thousands of people in Florida, potentially throwing the state to Trump. Lagoa’s unprincipled conduct in that case makes her a perfect candidate for the president’s midnight appointment.

Lagoa, 52, was born in Miami. Her parents are Cuban refugees. She served for three years as a federal prosecutor before then-Gov. Jeb Bush appointed her to the Florida Court of Appeals in 2006. She is a longtime member of the Federalist Society, the conservative network of lawyers who’ve provided intellectual cover to Trump’s policies, crimes, and cover-ups. In 2019, Republican Gov. Ron DeSantis elevated her to the Florida Supreme Court, making her the first Latina to join the bench. She promptly joined the new conservative majority in revisiting and overturning progressive precedents.

As a justice, Lagoa also participated in oral arguments over the scope of Amendment 4, a landmark constitutional amendment (passed via ballot initiative) that restored suffrage to people convicted of most felonies once they finished their sentences. DeSantis and Republican lawmakers pushed through a bill sabotaging the amendment by requiring Floridians to pay all fines and fees associated with their sentence before regaining the right to vote. Civil rights activists argued that the law violated Amendment 4, which made no mention of fines and fees. (It’s not actually clear if most formerly incarcerated people favor Democrats, but Florida Republicans plainly assume they do.)

During arguments, Lagoa acted more like an advocate for DeSantis than a judge, literally reading editorials from the bench to demonstrate that the amendment encompassed the payment of all court debt. At one point, she read aloud a Miami Herald article that allegedly supported her position. “I have reams here of op-ed pieces and editorials from different papers all over the state of Florida,” Lagoa proclaimed, holding up a stack of paper, “that made it clear” the amendment included fines and fees.

Before the Florida Supreme Court handed down its decision affirming DeSantis’ contortion of Amendment 4, Trump elevated Lagoa to the 11th U.S. Circuit Court of Appeals. The 11th Circuit then heard a federal challenge to the same law. Lagoa should have recused herself from the case because she participated in a closely related proceeding, throwing her impartiality into serious doubt. But she did not recuse. Instead, she cast the decisive vote upholding the poll tax and conveyed her enthusiasm for the law in a manner that tells a great deal about her judicial philosophy.

First, Lagoa joined the entirety of Judge William Pryor’s majority opinion—including a radical section joined by just one other judge, Trump nominee Kevin Newsom. The decision claimed that Florida has the legal right to refuse to tell formerly incarcerated people how much money they must pay to regain the franchise. But the most shocking section effectively defanged the 24th Amendment, which forbids poll taxes. Pryor claimed that this amendment actually allowed states to impose a poll tax as long as the state tied the tax to some “legitimate voter qualification for constitutionally legitimate reasons.” If a state can justify its poll tax on some grounds other than voter suppression, it does not violate the Constitution. So, for instance, if a state ordered all voters to obtain a certificate of eligibility before registering to vote, then charged $100 for that certificate, it would not run afoul of the 24th Amendment. Establishing a voter’s eligibility is a legitimate government interest, so the state can impose a tax on the process. As long as the state doesn’t tax the ballot itself, it has complied with the Constitution.

This outlandish theory—really, an attempt to repeal the 24th Amendment by judicial fiat—couldn’t even command a majority of Trump nominees on the 11th Circuit. Lagoa was the only judge who signed on to it in full. She also joined Pryor’s separate concurrence responding to the dissenters’ accusation that he lacked the moral courage to uphold constitutional equality. “Our duty is not to reach the outcomes we think will please whomever comes to sit on the court of human history,” he lectured the dissenters. “We will answer for our work to the Judge who sits outside of human history.” Pryor seemed to suggest that judges display real bravery by upholding anti-democratic disenfranchisement schemes like Florida’s.

Lagoa also wrote her own concurrence, joined by no one, that would gut constitutional protections against wealth-based voter suppression. She argued that judges should generally uphold poll taxes when indigent citizens have “alternative avenues” to vote—even when those avenues are arbitrary, discriminatory, or downright illusory. In Florida, people with felony convictions can theoretically regain the right to vote by seeking executive clemency. The state’s clemency board is notoriously biased toward white people and Republicans and rejects the vast majority of applicants, usually for no stated reason. According to Lagoa, however, those biases don’t matter. As long as people theoretically have another way to restore their voting rights, the state may saddle them with a poll tax that they cannot afford to pay.

There is a word for what Lagoa did throughout the Amendment 4 litigation: auditioning. Lagoa proved to Trump that she would even defy judicial ethics to come through for him on a case that could swing the election. Nobody should’ve been surprised when she appeared on the president’s latest Supreme Court shortlist.

Some conservatives have voiced skepticism about Lagoa, fearing she may not take a hard-line stance against reproductive rights. Their fears are baseless: Lagoa has established that she will adhere to the Republican Party line when it counts. She may be the perfect pick to shore up a fifth vote for Trump if the 2020 election falls into the Supreme Court’s hands.