The Courts Have Blessed a Modern-Day Jelly Bean Test in Florida

Boxes of ballots stacked on a cart before delivery
Ballots are placed on a postal truck at the Miami-Dade County Elections Department in Doral, Florida, on Oct. 1. Joe Raedle/Getty Images

Last month, the U.S. Court of Appeals for the 11th Circuit in a 6–4 ruling blessed the Florida Legislature’s scheme to gut the results of the 2018 voter-approved Amendment 4, passed with the promise of the restoration of the right to vote to approximately 1.4 million people who served their time through incarceration, probation, or parole.

The court-approved law, S.B. 7066, requires thousands of people with felony convictions to pay fines, fees, court costs, and restitution to vote, even though the appellate court and the Legislature know full well that Florida lacks the financial records to tell people how much they owe. Indeed, my organization, the NAACP Legal Defense and Educational Fund Inc., and our co-counsel proved during the trial as part of our lawsuit challenging the constitutionality of this law that it is practically impossible in many cases for previously incarcerated Floridians to comply with this cruel appellate decision. As we demonstrated through building a 10,000-page evidentiary record, for some Floridians, there would be no way to determine what they owe “unless, perhaps, an expert assisted by a team of Ph.D. candidates had time to [pore] over records.”

Placing a price tag on the ballot is repugnant enough, but making the price an indeterminate amount is, as a federal trial court recognized, “Kafkaesque.” Such defiance of fundamental fairness has been reined in by our Constitution when it has been employed in the past, including as a means of voter suppression. In 2020, though, this suppression is being allowed to go ahead full throttle.

This blatant injustice and cruelty evokes memories of the bygone Jim Crow era, during which officials repeatedly subjected Black Americans to “literacy tests,” which were facially applied to all voters but designed and employed to strip the vote from Black Americans. Now, in present-day Florida, individuals with felony convictions who have reentered their communities and completed probation and parole—a disproportionate number of whom are Black—are required to pay outstanding money associated with their convictions (also referred to as legal financial obligations, or LFOs) before they can vote. Too many returning citizens are too poor to be able to afford these fines—a reality exacerbated by the thousands of known collateral barriers to people with felony convictions, like securing jobs and housing.

The 11th Circuit was duty-bound to respect the factual findings of the district court judge, who presided over the eight-day trial and credited expert testimony illuminating that, in many cases, the sentencing documents that returning citizens—and state officials—need to figure out how much is owed cannot be located. Indeed, many sentencing documents from before the 1990s no longer exist or are inaccessible because they are archived in a warehouse. Even when records can be found, individuals must sometimes pay $7 per page to access them—a further prohibitive hurdle for people with limited resources.

If an individual does manage to obtain their sentencing documents with what was initially assessed, they then must track down payment records—yet another sometimes fruitless search. Payment records are commonly held by private debt collectors, and they, too, typically cost money to obtain. These records are often plagued with errors, and, even when correct, the records often do “not match payments with obligations,” as the district court’s May 2020 opinion noted. Payment records may include interest and exorbitant surcharges (such as a 40 percent collections fee), making it difficult or impossible to disaggregate what must be paid to vote. Overall, it is exceedingly difficult for someone to even begin to know how to fulfill the financial obligation they need to pay to vote or feel confident that they’ve already fulfilled it.

Ultimately, Florida and six judges on the 11th Circuit are requiring the state’s residents to fulfill obligations under a law with which compliance is “sometimes easy, sometimes hard, sometimes impossible,” as a federal trial court described. This is not only amoral and callous; it also violates basic American jurisprudence. Legal precedent, including a line of jurisprudence known as the “bitter with the sweet,” has long established that people must know what legal obligations are required of them so they are aware of how to act in accordance with the law—and so that those who enforce the law do not do so in a discriminatory manner. Put another way, the state cannot provide a right—as Amendment 4 does—and then condition that right on a standard you do not and cannot ascertain.

The confounding process of determining an LFO amount “has all the certainty of counting jellybeans in a jar,” dissenting judges blistered in response to the 11th Circuit Court’s opinion. This characterization references the “jelly bean test,” one of the many aforementioned “literacy tests” that was employed to prevent Black voters from accessing the polls during the Jim Crow era. Registrars would ask Black and white voters how many jelly beans were in a jar, and then typically affirm that white voters’ random guesses were correct and Black voters’ guesses were wrong. Only those with a “correct” response could proceed with casting their ballots.

No voter—especially prospective voters and communities who have for too long been forced out of our political system, like Black returning citizens—should face these insurmountable, state-erected barriers to the ballot box. And no court should sanction these barriers by allowing unfulfillable voting requirements to perpetuate a not-so-hidden agenda of voter suppression.

Right now, millions of dollars are generously being poured into the state to pay down LFOs. Lawyers and other advocates are working with Floridians to try to find out what the state believes they must pay to vote. Voters who are beneficiaries of Amendment 4 who already registered before this recent appellate decision must be mobilized to try to ascertain the fees they may owe, pay those fees with support if necessary, and vote. And I, alongside my colleagues, clients, and many other allies, will continue to work to hold the state accountable for S.B. 7066’s clear unconstitutionality—in and outside of the courts—to ensure that those who are eligible to vote receive their rightful, unfettered, and nondiscriminatory access to the ballot box.