"The Cost of Florida's Ballot" by Benjamin Plener Cover

The Cost of Florida’s Ballot

Benjamin Plener Cover

The Leadership Conference on Civil and Human Right / Flickr / CC BY-NC 2.0

Florida is the most populous battleground state, famous for high-stakes contests, razor-thin margins, and trouble with electoral administration. Back in 2000, George W. Bush won Florida by 1,784 votes.¹ In Florida, perhaps more than in any other state, every vote counts. But not everyone gets to vote. Florida is about to prevent as many as 1.4 million citizens from voting for failure to pay money.² Many of them don’t know how much they owe, can’t afford to pay it, or can’t get paperwork showing what they already paid. Justice Sotomayor recently called this scheme “Florida’s voter paywall.”³ A federal judge called it unconstitutional.⁴ But less than a month before Florida’s voter registration deadline, the Eleventh Circuit overruled that judge and reinstituted the paywall.⁵ This essay explains how we got here, and considers what this says about American democracy on the eve of the 2020 election.

The Supreme Court has long held that “the right to vote is fundamental” because it is “preservative of all rights.”⁶ But the Constitution does not explicitly grant an affirmative right to vote or set federal standards for voter eligibility. Instead, it lets each state set its own voter eligibility rules for national elections.⁷ Throughout American history, states have used this power to condition suffrage on a wide variety of factors. Many restrictions once embraced are now abandoned: constitutional amendments have prohibited vote denial on the basis of race, sex, age, and payment of a poll tax or other tax;⁸ federal statutes now prohibit literacy tests and similar devices of Jim Crow voter suppression;⁹ and the Court has interpreted the Fourteenth Amendment’s Equal Protection Clause to forbid vote denial on the basis of occupation, family status, wealth, property ownership, or taxpayer status.¹⁰ If you’re an adult citizen resident, your state generally cannot deny you suffrage — that is, unless you have a felony conviction. While most other franchise restrictions have fallen, felon disenfranchisement has persisted, embraced in historical practice and even acknowledged in the Reconstruction Amendments adopted in the aftermath of the Civil War. The Fifteenth Amendment prohibited race-based vote denial or abridgement, but said nothing about felony convictions.¹¹ The Thirteenth Amendment abolished slavery, except as a punishment for crime.¹² The Fourteenth Amendment threatened to reduce a state’s congressional representation if it denied suffrage to adult male citizens, unless the denial was “for participation in rebellion or other crime.”¹³ In the landmark 1974 case of Richardson v. Ramirez, the Court concluded, on the basis of this language and record of historical practice, that felon disenfranchisement must comport with equal protection.¹⁴ The Court subsequently struck down a system of felon disenfranchisement purposely established as an instrument of race-based vote suppression.¹⁵ But it is hard for challengers to demonstrate such racist intent and easy for states to argue that subsequent legislative action has cleansed the taint of earlier racist motivations. So judicial intervention has been limited and felon disenfranchisement has largely been a state-level policy decision.

The relationship between felony conviction and suffrage has varied significantly across states and over time, reflecting conflicting, and evolving, views on crime and democratic participation. Americans believe in consequences, but also in second chances. Americans view suffrage as a universal right, but also as a privilege of citizenship subject to forfeiture through wrongdoing. The result is a patchwork of suffrage rules for persons with felony convictions: two states and the District of Columbia permit voting in prison, seventeen states automatically restore voting rights upon release from prison, and twenty states restore them upon completion of probation or parole.¹⁶ Eleven states deny suffrage to some or all persons with felony convictions even after they have completed prison, parole, or probation.¹⁷ Recent years have witnessed a significant trend towards more voting rights for people with felony convictions.¹⁸ After increasing steadily since the 1970s, the number of Americans disenfranchised due to a felony conviction has actually decreased 15% since its highwater mark of 6.1 million in 2016 to 5.2 million in 2020.¹⁹

Americans view suffrage as a universal right, but also as a privilege of citizenship subject to forfeiture through wrongdoing.

Until recently, Florida had one of the harshest approaches to felon disenfranchisement, an outlier among states just as the U.S. is an outlier among nations.²⁰ Since 1968, Florida has maintained, and the Eleventh Circuit has upheld, a scheme of universal and presumptively permanent felon disenfranchisement, where every felony conviction triggers a lifetime voting ban, subject only to a discretionary process of executive clemency and rights restoration.²¹ In 2016, Florida was one of only nine states that subjected persons with felony convictions to lifetime voting bans.²² This harsh approach disenfranchised a sizable portion of Florida’s adult population, impacting white residents more overall, but black residents at a higher rate. In 2016, Florida’s felon disenfranchisement stripped voting rights from almost 1.7 million people, 10% of adults, and 21% of black adults.²³

But in 2018, the people of Florida approved a ballot initiative, called Amendment 4, which provided that the voting rights of most people with felony convictions would be automatically restored “after they complete all terms of sentence including parole or probation.”²⁴ When Amendment 4 took effect on January 8, 2019, it was understood to be self-executing: people with felony convictions started registering to vote, and county election officials processed their registrations. Many predicted Amendment 4 would enfranchise more people than any law passed in the last five decades, if not the last century.²⁵

But in its spring 2019 session, the Florida legislature passed on a straight party-line vote a law, often called SB7066, which significantly limited the effect of Amendment 4. This statute defined the language “all terms of sentence” in Amendment 4 to include payment of any legal financial obligation (LFO) – fines, fees, costs, or restitution – “contained in the four corners of the sentencing document,” Fla. Stat. § 98.0751(2)(a). The statute insisted on payment as a condition of voting, even if the sentencing court subsequently converts that LFO to a civil lien enforceable only through the civil-justice system, a common practice when a criminal defendant is too poor to pay.²⁶ In this way, SB7066 establishes a pay-to-vote system, whereby otherwise qualified persons who have completed all other aspects of their felony sentences, can register and vote if and only if they first pay off all outstanding LFOs.

This paywall obviously denies the ballot to those too poor to pay. But it also creates an administrative hurdle: even if you can afford to pay, you first have to determine how much you originally owed, and how much, if any, you have already paid; even if you correctly determine and pay off your LFO, you need documentation confirming that fact. As a federal judge would subsequently conclude, that task is “sometimes easy, sometimes hard, sometimes impossible.”²⁷

On June 28, 2019, the day Governor DeSantis signed SB7066 into law, persons with felony convictions, and voting rights organizations, filed a lawsuit in federal district court challenging Florida’s paywall on multiple grounds.²⁸ This lawsuit raised important, novel questions of constitutional law, including whether Florida’s scheme: (1) constitutes impermissible wealth discrimination to the extent it conditions voting on payment of LFOs a person is unable to pay; (2) offends the Twenty-Fourth Amendment’s prohibition on vote denial “by reason of a failure to pay any poll tax or other tax”; (3) violates the Due Process Clause of the Fourteenth Amendment to the extent it conditions voting on payment when the amount of LFOs due cannot be ascertained with reasonable diligence; (4) represents intentional discrimination on the basis of party affiliation, race, or gender in violation of the First and Fourteenth Amendments; (5) imposes “excessive fines” prohibited by the Eighth Amendment; and (6) violates provisions of the National Voter Registration Act (NVRA).

The Equal Protection claim falls in a gray zone of Supreme Court jurisprudence. As noted above, under the Richardson v. Ramirez decision, felon disenfranchisement is constitutionally permissible, even if every felony conviction triggers a lifetime ban.²⁹ But can a state selectively restore voting rights to persons with felony convictions, and condition that restoration on the payment of LFOs a person cannot afford? Does that differential treatment, based on ability to pay, deny people “the equal protection of the laws” in violation of the Equal Protection Clause of the Fourteenth Amendment? With every equal protection challenge, a court must decide how rigorously to scrutinize the challenged law. Most laws are subject only to a deferential form of judicial scrutiny called rational basis review, which sustains a law so long as it rationally relates to a legitimate state interest. But when a law implicates a fundamental right or a suspect classification, a court will apply heightened scrutiny and strike it down unless it bears a sufficiently close relationship to a sufficiently weighty state interest. Most equal protection challenges turn on which level of scrutiny applies, because most laws survive rational basis review but fail heightened scrutiny.

Voting is generally treated as the sort of fundamental right that triggers heightened scrutiny.³⁰ But is voting still a fundamental right triggering heightened scrutiny when a person with a felony conviction has no constitutional right to vote? Classifications based on race or gender trigger heightened scrutiny, while classifications based on wealth generally do not.³¹ However, the Court has applied heightened scrutiny to wealth classifications in two contexts: criminal justice administration and voter eligibility rules.³² For example, a state cannot throw a probationer back in prison because he cannot afford his fines.³³ And even though the Twenty-Fourth Amendment only prohibits poll taxes in national elections, the Court concluded that poll taxes in state elections violate equal protection.³⁴ Obviously, Florida’s scheme implicates both voter eligibility and the criminal justice system. Yet the only two other courts to address this issue have concluded that rational basis review should apply to wealth-based felon re-enfranchisement.³⁵

The Twenty-Fourth Amendment also presents fascinating interpretive questions, since it has been so rarely analyzed by courts. The Amendment provides that “[t]he right of citizens… to vote in [national elections] shall not be denied or abridged…by reason of failure to pay any poll tax or other tax.”³⁶ Florida denies voting rights restoration to an otherwise eligible person if she fails to pay restitution, fines, fees, or costs. Are any of these LFOs a “poll tax or other tax” under the Twenty-Fourth Amendment? If so, is Florida denying a person’s right to vote in national elections “by reason of failure to pay” them? And does the Equal Protection Clause protect the right to vote in state and local elections precisely the same way that the Twenty-Fourth Amendment protects the right to vote in national elections?

After an evidentiary hearing, Judge Robert Hinkle issued a preliminary injunction on October 18, 2019, permitting those plaintiffs who claimed inability to pay to register and those plaintiffs who demonstrated inability to pay to vote.³⁷ Judge Hinkle concluded that Florida cannot deny restoration to a person with a felony conviction solely because that person is unable to pay an LFO imposed as part of the felony sentence. Judge Hinkle considered that principle settled by a 2005 en banc Eleventh Circuit decision, which stated that “[a]ccess to the franchise cannot be made to depend on an individual’s financial resources,” but ultimately upheld Florida’s felon disenfranchisement scheme in part “[b]ecause Florida does not deny access to the restoration of the franchise based on ability to pay.”³⁸ Judge Hinkle declined to rule on the Twenty-Fourth Amendment claim, and he concluded that the plaintiff had not yet established a due process violation.³⁹ But he held that plaintiffs were likely to prevail on their wealth-discrimination equal protection challenge, and he granted the preliminary injunction on that basis.

A three-judge panel of the Eleventh Circuit unanimously upheld this preliminary injunction on appeal, affirming that the state cannot prevent an otherwise-eligible person from voting for failure to pay LFOs she is genuinely unable to pay.⁴⁰ The panel recognized that the “first and most critical question” is “[t]he appropriate level of scrutiny” and the answer “is not immediately obvious.”⁴¹ Considering the arguments on both sides, and recognizing contrary precedent from other jurisdictions, the panel ultimately concluded that heightened scrutiny applies in the limited context of a wealth-classification that denies suffrage on the basis of indigency. But the panel went further, suggesting the LFO requirement might fail even rational basis review. The panel recognized that Florida has legitimate interests in debt collection, deterrence, retribution, and rehabilitation. But the panel thought the LFO requirement only rationally advances these interests when applied to people who are able to pay, not to people who are genuinely unable to pay despite good faith efforts. For this reason, the panel concluded that whether the scheme survives rational basis review depends on whether the scheme must be rational as applied to the plaintiffs, or only rational as applied to the entire class of otherwise eligible persons with felony convictions, and on what proportion of that class is truly indigent. If the scheme must be rational as applied to the plaintiffs, it fails. Even if the scheme must only be rational with respect to the entire class, it may fail if a substantial enough proportion of the class is truly indigent. As a factual matter, that may very well be the case, but on the limited record before the panel, the plaintiffs had not yet met their evidentiary burden. Thus, the panel declined to declare the Florida scheme irrational, but it concluded that the preliminary injunction was warranted under the heightened standard of review that should apply to wealth-based suffrage denial. Florida requested reconsideration en banc, but that request was denied.

In May 2020, after a full trial on the merits, Judge Hinkle concluded that “the plaintiffs’ evidence has grown stronger,” and invalidated Florida’s scheme under both the Equal Protection Clause and the Twenty-Fourth Amendment.⁴² On the equal protection claim, the trial court agreed with the Eleventh Circuit panel that the LFO requirement triggers heightened scrutiny, but also concluded it fails rational basis review, even when applied to the entire class of otherwise eligible persons, because, just as the panel had suspected, “the overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount.”⁴³

On the Twenty-Fourth Amendment claim, the trial court thought the only real question was whether an LFO constitutes a tax. To answer this question, the trial court employed a function analysis that distinguished between restitution and fines on the one hand, and costs and fees on the other. Restitution compensates a victim; a fine punishes the person convicted in an amount proportional to the gravity of the offensive and the culpability of the perpetrator. Neither is a tax. However, costs and fees are imposed in standardized amounts to fund the criminal justice system. Based on this analysis, the trial court concluded that costs and fees (but not restitution or fines) are taxes, and voting cannot be conditioned on their payment, regardless of a person’s ability to pay. To remedy these constitutional violations, the trial court granted a permanent injunction that essentially permitted an otherwise eligible person to register and vote unless the state promptly establishes that the person is able to pay outstanding restitution or fines imposed as part of a felony sentence. The trial court issued its order on May 24, 2020, more than four months before Florida’s voter registration deadline of October 6, 2020. This provided time for election officials and people with felony convictions to work through the orderly process established by the permanent injunction.

But five weeks later, the Eleventh Circuit granted Florida’s extraordinary request for an initial hearing en banc (i.e. a hearing before all the circuit’s judges without prior consideration by a three-judge panel). The Eleventh Circuit also granted, without explanation, Florida’s request for a stay (i.e. a pause in the operation) of the permanent injunction pending appeal, which replaced the orderly process Judge Hinkle carefully crafted with a legal limbo that confused both election officials and prospective voters. The United States Supreme Court affirmed the Eleventh Circuit’s stay, over a powerful dissent by Justice Sotomayor, who felt that the majority selectively applied a principle against rule changes that generate confusion in the run-up to an election, enforcing the principle against rule changes that expand voting rights, but not against rule changes that burden voting rights. On August 11, 2020 in the midst of early voting for Florida’s primary election, the en banc Eleventh Circuit held oral argument. And on September 11, 2020, less than a month before Florida’s general election voter registration deadline, the Eleventh Circuit en banc, in a 6-4 split decision, reversed the trial court and sustained the validity of the LFO requirement in its entirety.

The en banc majority systematically rejected the analysis of both the trial court and the panel that affirmed the preliminary injunction. The proper level of scrutiny for the equal protection claim was rational basis review, not heightened scrutiny, because wealth is not a suspect classification and those convicted of felonies have no right to vote. The scheme survives that deferential review, because the plaintiffs failed to establish that it lacks any rational relationship to any legitimate interest when applied to the entire class of people with unpaid LFOs. Even though Florida’s criminal justice system is funded in substantial part through costs and fees assessed across the board without individualized consideration of culpability, those LFOs are not taxes under the Twenty-Fourth Amendment because they are part of a criminal sentence.⁴⁴ And the LFO requirement presents no due process concerns, even if it is hard or even impossible for a person to determine how much she owes and how much she has paid. That person is not entitled to any process, because the decision to disenfranchise her was made through the legislative process, not an adjudicative process, and Florida has “no obligation” to help that person ascertain “the facts necessary” to comply with voter eligibility standards.⁴⁵

The en banc decision left at least three quarters of a million people with just a few weeks to navigate the “pay-to-vote system” that Florida had demonstrated a “staggering inability to administer.”⁴⁶ Groups like the Florida Rights Restoration Project (FRRP) worked to help as many people as possible surmount Florida’s paywall, assisting them in efforts to determine what LFOs they had outstanding, and even providing financial assistance so they could pay them off. Michael Bloomberg donated $16 million to FRRP to support this financial assistance. Of course, by helping people pay off their outstanding LFOs, this assistance advances the very state interests Florida proffered to justify its scheme, such as debt collection and compensation for victims. But Florida’s Attorney General sent a letter to the FBI, calling for an investigation into these efforts, suggesting they somehow violated state and federal laws against buying votes. The suggestion is frivolous, and the letter is more a publicity stunt than a serious legal analysis. But it may intimidate people on the ground: not Michael Bloomberg, who can afford good lawyers, but the people Amendment 4 was intended to help, people who have completed prison sentences and who want to participate in the democratic process, just not at the risk of going back to prison.

In a report issued this month, the Sentencing Project estimates that nearly 900,000 Floridians otherwise eligible to vote remain disenfranchised despite Amendment 4 because they cannot determine or afford to pay outstanding LFOs. That number far exceeds the margin that determined the 2000 Presidential election.

In a report issued this month, the Sentencing Project estimates that nearly 900,000 Floridians otherwise eligible to vote remain disenfranchised despite Amendment 4 because they cannot determine or afford to pay outstanding LFOs.

The Amendment 4 saga reflects both the best and the worst of American democracy. Its very passage belies the cynical assumptions of political theory and conventional wisdom: that people vote based on self-interest rather than principle; that those with power exclude those without; that polarization precludes bipartisanship. While the Senate and Governor races had razor-thin margins, Amendment 4 passed with 65% support – more than any other statewide candidate achieved in Florida’s 2018 election.⁴⁷ If all voters are partisans, and Amendment 4 obviously helps one party, then hundreds of thousands of Floridians voted against their partisan interests.

But Amendment 4’s implementation succumbed to the gravitational pull of cynical partisanship. After a supermajority of Floridians chose to enfranchise a marginalized group of fellow citizens, the legislature undermined that choice. Unlike Amendment 4, SB7066 passed on a straight party line vote: every Republican supported it, and every Democrat opposed it.⁴⁸ The legislature knew SB7066 would increase the workload for Florida election officials, requiring at least 21 new full-time employees, but it appropriated no additional funds to support the increased workload. In the 18 months between the passage of Amendment 4 and the trial on the merits, Florida had received voter registration applications from about 85,000 people with prior felony convictions, and completed screening of precisely none of them.⁴⁹ But since the victory before the Eleventh Circuit en banc, Florida has moved with new-found alacrity to warn local election officials that individuals may have unpaid LFOs.⁵⁰ Throughout the case, Florida insisted SB7066 was justified by the state’s important interest in ensuring that every person convicted of a felony fully repay her debt to society.⁵¹ But in the course of litigation Florida switched to a “bizarre” method of calculating payment that would restore voting rights to many people who had not fully paid their LFOs. When plaintiffs challenged Florida’s rules as an unconstitutional pay-to-vote scheme, Florida insisted the LFOs were for the criminal sentence, not the ballot. But when people sought financial assistance to pay their LFOs, Florida Attorney General Ashley Moody referred the matter to the FBI, suggesting it was an illegal pay-to-vote scheme.⁵² While Florida’s criminal prohibition on ineligible voting explicitly contains a “willfulness” requirement, Florida’s voter registration form included a warning of criminal liability that omitted mention of the scienter element. In what Judge Hinkle called “a breath-taking attack on the will of the voters,” Florida argued at trial that Amendment 4 must fall in its entirety if Florida cannot predicate voting on payment of LFOs.⁵³

The decision of the en banc Eleventh Circuit comes two decades after the Florida recount of 2000 culminated in a 5-4 decision of the United States Supreme Court that determined the winner of the presidential election. This decision also comes at a time of intense political polarization and an escalating game of constitutional hardball, as Republicans rushed to confirm now-Justice Amy Coney Barrett in the weeks before election day and Democrats speak of expanding the Supreme Court. At this moment, when the independence and perceived legitimacy of the federal courts are in jeopardy, the Eleventh Circuit’s eleventh-hour intervention is particularly troubling. It would be one thing if the reasoning was unassailable and the decision unanimous. But the reasoning is, at the very least, subject to debate, and the decision was split 6-4. Of the six judges in the majority, each one was appointed by a Republican president, five by President Trump. Judges Luck and Lagoa were first appointed to the Florida Supreme Court by Governor DeSantis shortly after Amendment 4 passed, and then elevated to the Eleventh Circuit shortly after Judge Hinkle issued the preliminary injunction. Both of them served on the Florida Supreme Court when Governor DeSantis requested an advisory opinion on the meaning of Amendment 4, and both of them participated actively in oral argument on that question. But despite commitments they made during the senate confirmation process, and mandatory recusal rules, they refused to recuse themselves when Florida appealed Judge Hinkle’s permanent injunction.⁵⁴ Instead, they insisted on casting the decisive votes, both procedurally and on the merits, to reverse Judge Hinkle and reinstate Florida’s paywall.

We will soon learn whether those votes will prove critical to the outcome of the 2020 presidential election. If they do, it will only be accurate in the most perverse sense to say that in Florida, every vote counts. ♦

Benjamin Plener Cover is an associate professor at the University of Idaho College of Law in Boise, where he teaches and writes about election law. He is anti-gerrymandering and pro-democracy. You can follow him on Twitter @bplenercover.

Author’s note: I am grateful to Canopy Forum for the invitation to publish this essay, to Anastasia Knudsen for her careful editorial review, and to Alex Siebert and Trevor Buller for their excellent research assistance.

Recommended Citation

Cover, Benjamin Plener. “The Cost of Florida’s Ballot.” Canopy Forum, October 30, 2020. https://canopyforum.org/2020/10/30/the-cost-of-floridas-ballot/

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