Voting Rights

Florida May Not Re-Disenfranchise Ex-Felons Unable to Pay Court Fines and Fees

It is unconstitutional, the 11th Circuit holds, for Florida to deny voting rights to ex-felons solely because they have outstanding fines or fees. to vote And yes, "re-disenfranchise" is a real word.

|The Volokh Conspiracy |

Florida, like most States, has a long-standing history of permanently dis-enfranchising persons convicted of a serious crime; indeed, Article VI of the Florida Constitution expressly provided that "no person convicted of a felony … shall be qualified to vote."

But in 2018, Florida voters, by a 65%-35% margin, approved an amendment (known as Amendment 4) to Article VI, which now reads in relevant part [with the 2018 additional text in italics]:

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

(b)No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

At the urging of FL Gov. Ron DeSantis, the FL legislature enacted implementing legislation, SB 7066, which interpreted the requirement that voting rights are to be restored "upon completion of all terms of sentence" to include discharge of all "LFOs"—legal financial obligations—ordered by the sentencing court, including payment of any court-ordered restitution to victims and all court-ordered fines or fees that were included as a part of the original sentence.

This requirement, as a practical matter, meant that substantial numbers of otherwise-eligible ex-felons would not be eligible for restoration of their voting rights because of their inability to pay their outstanding LFOs.  The precise numbers are hard to come by, but it is abundantly clear that (a) a substantial majority of ex-felons have some outstanding LFOs at the conclusion of their sentences, (b) that these are frequently upward of $1000 or more, and (c) that many individuals in the population of ex-felons are indigent and are unable to discharge the obligations.

Seventeen plaintiffs—each of whom, in the court's words, had demonstrated that they are "genuinely unable to pay" their outstanding LFOs—challenged this provision, arguing that it violated, among other constitutional rights, their rights under the Equal Protection Clause. Their claim boils down to this: SB 7066 draws a line between individuals who have, and individuals who have not, paid off their LFOs; it treats individuals on different sides of that line differently, even if they are otherwise identical in every relevant way (same crime, same sentence, same LFO obligations); this differential treatment serves no legitimate governmental purpose whatsoever.

A three-judge panel of the 11th Circuit agreed, issuing a judgment this past Wednesday affirming an injunction against imposition of the statutory requirements regarding LFOs on those ex-felons who are "genuinely unable to pay."

I leave for others—as the court left for others—the question of whether Florida's Republican law-makers were motivated, in enacting SB 7066, by anything other than a desire to reduce the impact of Amendment 4 on the Republican party's electoral prospects in the State by denying voting rights to a class of individuals likely to skew Democratic, and/or the extent to which this was part of a larger "voter suppression" enterprise which has, disturbingly, gained considerable ground in recent years.

The court, as is common in much constitutional litigation, devoted considerable space in its opinion to determining the "level of scrutiny" it would apply when evaluating this claim.  "Rational basis" scrutiny requires that the challenged law must be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification between persons"—i.e., between the difference in treatment accorded to ex-felons who have, and ex-felons who have not, discharged their LFOs.  Under more exacting "heightened scrutiny," the court demands a "tighter fit" between the classification being drawn and the government's interest, some showing by the government that the classification in question will actually advance some important governmental purpose.

The court held—correctly, I believe—that heightened scrutiny was appropriate for evaluating this claim. The court began by (correctly) noting that, ordinarily, heightened scrutiny is reserved for cases involving differential treatment that is either based on a "suspect classification," or one "affecting fundamental rights." Although distinctions based on wealth alone are not generally treated as "suspect"—the government may impose fees making it impossible for the indigent to register a car, or attend a sporting event at a state-owned arena, or attend the state university, without having to bear any special heightened burden of justification for doing so—this case represents an exception to that general rule:

[T]he Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or 'quasi criminal in nature' turn on ability to pay. Because Florida's re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny.

And voting surely is, as the Supreme Court put it many years ago, "a fundamental right, because [it is] preservative of all rights," Yick Wo v. Hopkins, 118 U.S. at 370 (1886), and the Court has affirmed on many occasions that "the right of suffrage is a fundamental matter in a free and democratic society, … and any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."**

** The court's holding here regarding the level of scrutiny to be applied in this case appears to be in conflict with two other decisions (Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010) and Madison v. State, 163 P.3d 757 (Wash. 2007)) applying rational basis scrutiny to felon re-enfranchisement schemes requiring the payment of LFOs as a precondition to voting, on the ground that "felons no longer enjoy the fundamental right to vote." This position is based on a rather egregious mis-reading of the leading Supreme Court case on the matter, Richardson v. Ramirez, 418 U.S. 24, 56 (1974). In Richardson, the Court upheld California's permanent felon dis-enfranchisement scheme, but not because felons had no fundamental right to vote, but rather because the Constitution expressly sanctions, in the 14th Amendment itself, a denial of voting rights to felons by providing that States may count individuals who are "denied the right to vote … for participation in rebellion or other crime" when determining the number of Representatives and the number of presidential electors to which the State is entitled. But regardless of my views on the matter, this conflict may constitute enough of a split to warrant Supreme Court review of the question, should Florida decide to seek such review.

The court then proceeded to evaluate the government's proffered justifications for creating "a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, one that punishes more harshly solely on account of wealth—by withholding access to the ballot box," and found those justifications woefully insufficient under the heightened scrutiny standard.  Indeed, it expressed "reservations" even about whether "the wealth-based disparities created by the LFO requirement would pass even rational basis scrutiny."

Florida certainly has a legitimate interest in "promoting the payment of restitution and other financial obligations, [and] in the collection of revenues produced by the payment of fines." But for these 17 plaintiffs, SB 7066's LFO provision will have no effect on that interest, because they are "indigent and genuinely unable to pay despite good faith efforts":

If a felon is truly indigent and unable to pay his LFOs, Florida's requirement "obviously does not serve revenue collection; the defendant cannot pay because he is indigent. The simple truth is that a collection-based rationale for those who genuinely cannot pay, and who offer no immediate prospects of being able to do so, erects a barrier without delivering any money at all.

Nor can this classification be justified by the State's interest in retribution and punishment:

"[U]nder any plausible theory of retribution, punishment must at least bear some sense of proportionality to the culpability of the conduct punished to be rational…. Retribution, which has as its core logic the crude proportionality of "an eye for an eye," has been regarded as a constitutionally valid basis for punishment only when the punishment is consistent with an individualized consideration of the defendant's culpability, and when the administration of criminal justice works to channel society's instinct for retribution. Here, these plaintiffs are punished more harshly than those who committed precisely the same crime—by having their right to vote taken from them likely for their entire lives. And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth."

"Quite simply," the court concluded, "Florida's continued disenfranchisement of these 17 plaintiffs is not rationally related to any legitimate governmental interest."

Part of the charm of constitutional law is that it takes the court 78 pages to state what was obvious to many at the outset:  The LFO pre-condition to re-enfranchisement was enacted by a Republican governor and Republican-majority legislature for one reason and one reason only, viz., as a way to disadvantage individuals likely to vote for their electoral opponents, and that is not a legitimate basis on which to decide who gets to vote and who doesn't.

Governor DeSantis has said that he is prepared to appeal this decision. I don't think he will have much success going that route, inasmuch as the reasoning in this opinion strikes me as eminently sound. But the court's decision here leaves open other means by which the State can frustrate the goal of re-enfranchising as many people as possible in accordance with the spirit of Amendment 4. The court's judgment here was very carefully restricted: SB 7066 cannot be constitutionally applied to individuals who are, like the 17 plaintiffs, "genuinely unable to pay," and the State is enjoined from applying the LFO pre-conditions to others similarly situated.

But nothing in the preliminary injunction precludes the State from requiring additional proof of a plaintiff's inability to pay beyond what had been offered in district court, [nor] did the court order the State to follow any specific procedure or adopt any regime in complying with the injunction…. Moreover, the court did not define the term"genuine inability to pay,"again leaving it to the State to make a reasonable, good faith determination of how it could implement that term consistent with the court's order. In short, the court's order left the State with substantial discretion in choosing how to comply.

Uh-oh. I fear—how could one not?—that Florida will take this as something of an invitation to impose such onerous requirements for proof of a "genuine inability to pay"—five years' worth of tax returns, federal and state, notarized and certified, that sort of thing—that the promise of re-enfranchisement will remain illusory for large swaths of the subject population. One suspects that this is not the last we've heard of this matter.

 

 

 

for which ongoing punishment of disenfranchisement may serve as an incentive. Indeed, as to some class of felons,the State surely has a legitimate interest in making victims whole by encouraging restitutionary payments and, more generally, Florida has a legitimate interest in ensuring compliance with the lawful sentencing orders of its courts. Similarly, as a general matter, the State has an obvious interest in deterring crime and in employing punitive measures designed to raise the costs associated with criminal behavior.

 

 

 

Thus, if the question on rational basis review were simply whether the LFOrequirement wasrational as applied to the truly indigent—those genuinely unable to meet their financial obligations to pay feesandfines, and make restitution to the victims of their crimes—we would have little difficulty condemning it as irrational. n the absence of any fact-finding by the district court, and on this limited record, we cannot say that the plaintiffs have carried their burden of establishing that a substantial proportion of felons (let alone a substantial majority of them) are indigent and, therefore, that the plaintiffsrepresent the mine-run felon

 

At first blush, this case does not neatly fit into either category demanding heightened scrutiny. As we have said, generally, wealth is not a suspect classification.

But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise.M.L.B., 519 U.S. at123 ("[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may accessto judicial processes in cases criminal or 'quasi criminal in nature' turn on ability to pay."(citations omitted)). Because Florida's re-enfranchisement scheme directly implicates wealth discrimination both inthe administration ofcriminal justice andinaccess to the franchise, we are obliged to apply some form of heightened scrutiny.

We think the Griffin–Beardenprinciple straightforwardly applies heretoo, where the State has chosen to continue topunishthose felons who aregenuinelyunable to pay fees, fines, and restitution on account of their indigency, while re-enfranchising all other similarly situated felons who can afford to pay. This is so because continued disenfranchisement is indisputably punitivein nature, and because felons who are unable to pay are subject to continued punishment solely because oftheir inability to pay. Just likeinBeardenandinGriffin, the fact that the State originally was entitled to withhold access to the franchise from felons is immaterial; rather, heightened scrutiny is triggered whenthe Statealleviates punishment for some, but mandates that it continue for others, based solely on account ofwealth.

he same principle applies here: Florida ispermittedto disenfranchise allfelons. But as soon as the lawdemandedthat punishment continue for some and not others based on wealth, we becameobliged to examinethis disparitywith a sharper focus, because differential punishment on account of wealthstrikes at the heart of Griffin's equality principle

The long and short of it 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 anditmay not erect a wealth barrier absentajustification sufficient to overcome heightened scrutiny.

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  1. “The LFO pre-condition to re-enfranchisement was enacted by a Republican governor and Republican-majority legislature for one reason and one reason only, viz., as a way to disadvantage individuals likely to vote for their electoral opponents, and that is not a legitimate basis on which to decide who gets to vote and who doesn’t.”

    The people who pushed the amendment felt the opposite, that criminals were likely to vote for Democrats.

    All sides agree that criminals are Democrats. Congrats, I guess.

    1. Regardless of whom they vote for, I have never heard what I consider to be a persuasive argument for a nexus between criminality and the ability to cast an informed vote. Further, there’s a whole boatload of evidence that former offenders who feel they have a stake in their community are less likely to reoffend, so denying felons the right to vote is probably socially counter productive. As with sex offender registration lists, this is mostly about stigmatizing and penalizing people rather than furthering any legitimate social goal.

      As for whether criminals do in fact skew Democrat, any group of people that feels like outsiders looking in, whether because of race, poverty, gender identification or simply just never having felt like they belong, are statistically more likely to vote Democrat, and there’s a reason for that. Maybe instead of marginalizing and disenfranchising such people, the better social policy would be to fix the underlying issues that create “us versus them” politics.

      1. No, the argument is not that criminals vote Democrat; it is that pervasive government loves regressive taxes, occupational licensing, petty law enforcement, and other activities which has the perverse nature of hurting poor people and minorities, and making more of them criminals than the staid middle class. Democrats blame rich people and the middle class, and pass out lots of State largesse to the people they have hurt; the largesse is far easier to see than the invisible hurt, and Democrats are seen as their rescuers.

        Thus, yes, criminals are more likely to vote Democrat, because they need that highly visible largesse to get out from under the almost invisible yoke the Democrats have slapped on them.

      2. Like lack of jobs?

        1. Economic security helps, but my broader point is this: The world looks a lot different to an outsider looking in. Even a financially secure one. Such people are not likely to vote for a party that seems to think things are just fine as they are, or that taking from the have nots to give to the haves will improve things further.

          I’m a middle aged, middle class white guy. If I get pulled over for speeding, I may be annoyed that I’m getting a ticket, but I have no realistic fear of being shot. That’s not true of an 18 year old black guy who gets pulled over by the police. And even if that 18 year old black guy grows up to be a successful businessman, he’s not going to forget (or be allowed to forget) that no matter how successful he is, there are plenty of people out there, including some in blue uniforms, who view him as nothing more than an unapprehended criminal. And he’s not likely to vote Republican.

          1. “but I have no realistic fear of being shot. That’s not true of an 18 year old black guy who gets pulled over by the police.”

            Statistics actually say that, in any given encounter, your chances of being shot are actually worse than his. Blacks only get shot more often because they interact with the police a LOT more often, which is hardly shocking when they have a higher crime rate.

            1. Statistics don’t say that, Brett. Any of that.

              There simply aren’t adequate data for you to make those assertions.

              https://www.nature.com/articles/d41586-019-02601-9

              Black Americans are 2.5 times more likely to be shot and killed by the police than are white Americans. According to the Bureau of Justice statistics, Black Americans are roughly 1.5 times as likely to commit a violent crime.

              Another way to look at it, white people are roughly 62% of the population, commit roughly 57% of the violent crimes, and make up roughly 49% of the victims of fatal police shootings. Meanwhile, black people are roughly 13% of the population, commit roughly 15% of the violent crimes, but are 24% of the fatal police shootings.

              I am sure you will want to expand to all encounters, but then that just brings up whether police practices like stop and frisk are inherently racist and put minorities at greater risk of dying by police shooting. Also, we can look at statistics that show that black drivers are more likely to be pulled over by police, but without indication that they commit infractions at a higher rate.

              At best, for you, the data is wildly inconclusive. At worst, it directly contradicts your wide-ranging assertions.

              1. Per your own link, there was no correlation between the rate at which blacks were shot by police, and the race of the officer doing the shooting. That kind of kills the narrative that they’re being shot out of racism, unless you’re going to argue that black cops are as racist against blacks as white cops are.

                Look at table 12.

                “Percent and number of violent incidents, by total population, victim, and offender demographic characteristics, 2018”

                Percent of violent incidents, where the offender was
                White: 50.2%
                Black: 21.7%

                BUT, whites are 62.3% of the population, and blacks 12%. That makes the offense rate, adjusted for percentage of the population, better than 2.1 times higher for blacks than whites. Pretty close to that 2.5 times more likely to be shot you cited, isn’t it?

                Concentrate the police in areas where the crime rate is unusually high, (Which also tend to be areas with high black population percentages.) and it makes perfect sense that blacks are a lot more likely than whites to encounter police.

                So, in any given encounter, blacks are slightly LESS likely to be shot by police than whites. They just have a lot more encounters, for reasons which are perfectly justifiable in light of crime statistics.

                1. Brett,

                  “Per your own link, there was no correlation between the rate at which blacks were shot by police, and the race of the officer doing the shooting. That kind of kills the narrative that they’re being shot out of racism, unless you’re going to argue that black cops are as racist against blacks as white cops are.”

                  The narrative is not that white police are individually racist (as a rule) and, therefore, are more likely to shoot black citizens. Rather, the narrative is that there are racial stereotypes that affect split second decision-making and, at least as importantly, there are structural factors in the policing industry that make it more likely that police will shoot black citizens. The stats that suggest there is no correlation between rate at which black citizens are shot by police and the race of the police officer does not affect either of those narratives.

                  People tend to create stereotypes and, especially when mental resources are low (stress, fatigue) act on those stereotypes. The color of one’s skin does not make one immune from stereotypes.

                  “So, in any given encounter, blacks are slightly LESS likely to be shot by police than whites.”

                  The whole point is that the stats to back up that statement do not exist. You have cited no stats to support that assertion.

                  But, even if true, that doesn’t prove anything given multiple confounding factors. For instance, your narrative seems to be that, of course, black citizens have far more encounters with police which would mean far more innocent black citizens would have encounters with police and, because citizens innocent of any crime are presumably less likely to be shot that citizens who have committed a crime, you would expect a group targeted with disproportionate encounters would be less likely to be shot per encounter. In other words, even assuming you are right about that factoid, it doesn’t do the work you think it does.

                  “They just have a lot more encounters, for reasons which are perfectly justifiable in light of crime statistics.”

                  That is hardly a settled question. While Trump and 2015 Bloomberg agree with you, that is obviously a highly controversial position to take.

                  And, for example, there is significant data indicating that the increased encounters have nothing to do with reasonable suspicion and everything to do with improper targeting based on skin color. (Traffic stops are an example of encounters for which there are data and analysis indicates the disparity in encounters is not justified by legitimate police objectives.)

                  https://www.cnn.com/2019/03/21/us/police-stops-race-stanford-study-trnd/index.html

          2. “That’s not true of an 18 year old black guy who gets pulled over by the police.”

            Untrue, 18 year old blacks also have no realistic fear of being shot. Its completely unrealistic.

            More whites than blacks are shot by the police and the % of either as compared to the number of stops is tiny and any apparent differences statistically insignificant.

            1. Brett, and Bob, if I had magical powers, I would love to make you 18 year old non-criminal black males for a week or so, just to see if your perceptions change any.

              1. That is funny, but not in the way you think. I bet both of them would get a haircut, pull their pants up, and get a real job.

                1. I bet if they did, ignorant bigots like you would assume they got their real jobs because of affirmative action.

                  1. I bet ignorant bigots like you would assume that they couldn’t *without* affirmative action.

                    All I ask is, give him [the black man] a chance to stand on his own legs!
                    – Fredrick Douglas

                    1. Actually, I am generally opposed to affirmative action, with a couple of exceptions. That issue aside, though, in point of fact when a black person does succeed, there is a tendency on the part of some whites to assume that affirmative action must have had something to do with it, whether it did or not.

                      Of course, if we were to get rid of affirmative action, fairness would dictate getting rid of white privilege too. Did you know, for example, that 30% of Harvard admissions are legacy admissions which are almost entirely white? Whites have their own brand of affirmative action.

                    2. If you could quantify white privilege, actually measure it to prove it’s existence, then perhaps I would agree.

                      Affirmative action as it stands now, is collective punishment for the sins of a few dead white men that ignores the greater benefit that the rest of them have engendered human civilization.

                    3. “there is a tendency on the part of some whites to assume that affirmative action must have had something to do with it, whether it did or not.”

                      And that is a big reason why AA needs to die.

                      (BTW, it’s not only some whites that think it. Sometimes it’s also people of other colors that think it. Which is particularly insidious).

                    4. Mad Kayak I just gave you an example of white privilege. Thirty percent of Harvard admissions are legacy, which are mostly white.

                      And no, that is not the point of affirmative action. AA recognizes that whites used slavery and Jim Crow to get 3/4 of the way around the Monopoly board before blacks even passed go. So it’s more about allowing blacks a chance to catch up. And by the way, everything isn’t about you.

                    5. Yet Harvard’s undergrad student population is only 44% white.

                    6. Maybe a related set of questions are these:

                      How is success defined wrt affirmative action? Meaning, the program was promulgated to address previous wrongs. What tells us the legislative objectives of the law have been met?

                      What objectively tells us the past wrongs have been righted? Meaning, when do we objectively know to end affirmative action.

              2. Perception does not equal fact.

              3. I’m 61: I’d trade being black for being 43 years younger in a heartbeat.

                1. Now THAT’s unintentional irony.

                  In speaking of it as a “trade”, something to be offset against youth, you of course make the point of liberals- that you know as well as we do that there’s race discrimination out there that you would have had to face had you been black.

                  1. Nice. Set up a false choice, and when a choice is made anyway on a tertiary criteria, say “ah ha!”, you’re racist.

                    It’s like asking “Batman or Ironman” and he says “Dr. Strange, because I like magic” and your response is “you just don’t like non-superpowered heroes”.

                    1. Well, Chris Rock once told an audience, There isn’t a single white guy in this room who would trade places with me, and I’m rich.

                      I suspect he was right.

                    2. I’m perfectly willing to believe you suspect he’s right. The question is WHY you would suspect something that stupid.

                      That suspicion doesn’t say anything about us, but it says worlds about you.

            2. Is 1 out of 1000 an unrealistic fear?

              Your assertions that the “% compared to the number of stops is tiny and any apparent differences statistically insignificant” lacks adequate data to be justified. The data simply doesn’t exist to make that assertion. Moreover, if you compare deadly shootings by race to violent crimes by race, the statistics are more robust and directly contradict you assertion. Your point relies on the assumption (not data that is actually collected) that black Americans are have proportionally far more interactions with the police. Even if that is true, you would still have to show that policies like stop-and-frisk are justified, rather than that they are discriminatorily disproportionate much more modest differences in crime rates and put innocent black Americans at far greater risk of being victims of police violence solely because of their race.

              Basically, you are making really unqualified assertions that there is data when, in fact, there just isn’t that data.

              https://www.nature.com/articles/d41586-019-02601-9

      3. The idea isn’t that felons cast uninformed votes. It’s that their interests and those of society run contrary. A law abiding person wants effective law enforcement. Does a criminal want that?

    2. That would be very bad if the only measure of moral worth and character is a criminal conviction. Of course, in reality it is not. Many bad people are never convicted of their crimes. People who have been convicted of crimes can reform themselves. And most importantly, many of the bad things that people can do are not in actually crimes themselves. The fact that people who have been subject to the criminal justice system may skew Democratic is not really indicative of the moral worth of the party.

    3. Worse than all sides agree criminals vote democrat, but that blacks and hispanics are criminals and who vote democrat. Because if the ex-felon vote was split 50/50 this particular issue wouldn’t be on the radar. But black Americans vote about 90% democrat and they are about 12% of the populace and are about 40% of prisoners.

      https://www.bop.gov/about/statistics/statistics_inmate_race.jsp

    4. Except that Florida voters in 2018 both approved the felon voting amendment and elected Republicans up and down the ticket (including De Santis). So either Florida voters are irrational or Florida voters were not convinced that former felons vote for Democrats.

      1. Are you implying that voters don’t have contradictory desires, or that they don’t change on a whim, or that different groups of voters come out en masse for different elections (ex: 2016 vs 2018) meaning different groups of voters have different desires?

      2. Hypothetically, voters could believe that former felons vote for Democrats, and yet still ought to be permitted to vote once they’ve fulfilled their entire sentences. I’d qualify on that score.

        1. Shh….. You’re shattering their preconceptions.

          Here’s the real plan. You take the felons. Move them all to prisons in the red districts. Then give them the right to vote.

          Boom. No more “wasted” blue votes.

    5. Democrats get the criminals.

      Republicans are the stale-thinking bigots.

      Bob prefers Republicans.

    6. All sides agree that criminals are Democrats

      One of those weird situations where the converse is also true.

  2. I leave for others—as the court left for others—the question of whether Florida’s Republican law-makers were motivated, in enacting SB 7066, by anything other than a desire to reduce the impact of Amendment 4 on the Republican party’s electoral prospects in the State by denying voting rights to a class of individuals likely to skew Democratic, and/or the extent to which this was part of a larger “voter suppression” enterprise which has, disturbingly, gained considerable ground in recent years.

    This of course cuts both ways.

    I leave for others—as the court left for others—the question of whether Florida’s Democrat law-makers were motivated, in enacting SB 7066, by anything other than a desire to increase the impact of Amendment 4 on the Democrat party’s electoral prospects in the State by giving voting rights to a class of individuals likely to skew Democratic, and/or the extent to which this was part of a larger “voter enlargement” enterprise which has, disturbingly, gained considerable ground in recent years [such as lowering the voting age to 16].

    1. I take it you meant “opposing SB 7066” in your rewrite.

      So giving someone a ride to the polls in, in your opinion, the equivalent of physically preventing them from getting there?

      1. A: Yep, missed one.

        B: You missed one. Exaggeration of a strawman does not make it human.

        1. I see no exaggeration.

          One side’s interest is in blocking certain people from voting. The other side’s is in enabling their voting.

          1. Every dead man deserves the right to vote. Best part…you can ensure they vote, and ensure they vote the way you want. Bonus, if the other party tries to shoot you down, argue that they’re “blocking certain people from voting”.

            1. Armchair,

              That you can’t tell the difference between helping actual people vote and making up votes for non-existent people (corpses) says everything we need to know about your reasoning skills and your values.

    2. I’m not too concerned about Democratic initiatives to create more Democratic voters, because once they are in power then the start creating Republican voters. I think Virginia will be an example of that in the next couple of cycles. He’ll they even have a puncher’s chance of flipping the state red in 2020.

      Currently Gallup says people identify as Republicans over Democrats 30-27, in August before impeachmentpalooza it was 26-30.

  3. Pretty clearly a crude and transparent attempt by Republicans to keep them voting because they think they would vote Democratic. But given the state of the GOP, is anyone surprised?

    They’d burn the country down so long as they could rule over the ashes. Treacherous scumbags.

    1. Not sure if this comment is satire or serious…..

    2. SMOD 2024.

      Looks like we already have a good candidate for 2020.

  4. While I agree that there was undoubtedly some desire to, for purely political reasons, minimize the number of felons permitted to vote, (And, yes, the Democrats supported the proposal to maximize the number felons permitted to vote, for equally political reasons.) I can’t get past the fact that the statute in question seems to unambiguously implement the terms of the amendment.

    The amendment itself says, “upon completion of all terms of sentence”, and LFO’s are unambiguously terms of sentence. Arguably NOT requiring payment of legal financial obligations in order to be re-enfranchised would have been a state constitutional violation!

    As a matter of federal constitutional law, states are allowed to disenfranchise felons. That means they can partially disenfranchise felons. They can’t do so on impermissible grounds such as race or religion, but I don’t see how “didn’t pay their fine” qualifies as a constitutionally impermissible ground.

    The court’s reasoning leaves me unpersuaded.

    1. >”The court’s reasoning leaves me unpersuaded.”

      That’s because you’re racist.

      1. Well, sure, you’d say that. Heck, just the fact that I’m not a Democrat gets me halfway to being declared a racist, before you know anything else about me. Add that I’m white and opposed to legally mandated racial discrimination, and the deal is sealed, I’m 100% certain to be declared a racist. If I mentioned that I’m inter-racially married and have black friends and neighbors, I’d somehow manage to be 150% certain to be declared racist, if that were even possible.

        What’s lacking here is any reason I should care that you call me a racist. The epithet loses its sting once you realize it just means, “You’re white and don’t agree with me!”

        Look, attempting a bit of futile reason here: Black people can be able to pay their fines, white people incapable. If this statute discriminates on any basis at all, it’s financial hardship, not race.

        If the federal court had declared it a poll tax, they’d at least have had an argument.

        1. My attempt at ironical trolling of those who support the decision failed I see. But I’m glad you appropriately note the soft bigotry of low expectations for blacks though.

        2. Have some coffee, Brett.

          1. In a couple hours I will.

            1. I usually don’t apologize to people over the internet, but sorry.

        3. Well that was defensive.

          1. “When did you stop beating your wife”?

            (Whatever response you make)

            “Well that was defensive”

    2. the Democrats supported the proposal to maximize the number felons permitted to vote, for equally political reasons.

      It was a referendum, Brett, that passed by almost 2-1.

      As a matter of federal constitutional law, states are allowed to disenfranchise felons. That means they can partially disenfranchise felons. They can’t do so on impermissible grounds such as race or religion, but I don’t see how “didn’t pay their fine” qualifies as a constitutionally impermissible ground.

      The court’s reasoning leaves me unpersuaded.

      The court did not say, “You have to let them vote whether they pay or not.”

      It said, “You have to let them vote if they are unable to pay, because otherwise you are conditioning voting rights on financial circumstances, which is impermissible.”

      As an aside, note that Florida has a particularly onerous system of court fees and the like.

      1. Just a question for you or Post, but why is voting so fundamental a right that financial circumstances must be non-existent for anyone who intends to engage in it?

        I have to pay taxes for my guns and ammo, and taxes on my internet access to engage in free speech, and fuel taxes for my right to drive to a protest march or the polls for that matter, etc.

        But paying the full debt to society for your crime, or requiring an ID, to vote…suddenly it’s a huge insurmountable imposition?

        1. Because voting decides who has power. Power that ultimately might affect things like gun and speech rights. When the franchise is limited, it makes it more likely that elected officials will exercise power only with the needs and desires of those with the franchise in mind. The more that wealth is a barrier, the more likely it is that power will be exercised for the benefit of the wealthy. Or at least, not with the consideration of experiences of the less wealthy in mind. Therefore, a government that is trying to act with the interests of all of the people under it in mind, should not impose more barriers than the ones that might already exist.

          When the franchise is limited based on criminal history, elected officials are less likely to consider the consequences of their decisions about what should be crimes and how those crimes should be treated. With the exception of war, these are the most severe consequences a government can impose on humans. It is mightily convenient that by barring felons from the franchise, elected officials are less likely to take into account the experiences of those who have suffered those consequences. They become less accountable for the exercise of their most significant power.

          1. Good answer.

          2. Fair enough, thanks for a thoughtful answer.

            1. Thanks. As I’m sure you can tell, I am very sympathetic to the theories about voting today that are based on the historical treatment of minorities and to a lesser extent, wealth. And yes, that has a partisan advantage component right now.

              But, I think there is an ideal of voting that transcends all of that. Governments love popular legitimacy, although they don’t necessarily need it to rule. One way to make sure they have it is through enough votes. And if it can shave off the voting population by saying the people it imprisoned can’t vote? Well that’s a good deal, isn’t it?

              1. LTG….Thank you for a very thoughtful response. It was good enough to force me to re-think my position on the question of a state denying voting rights to felons who served their time and paid their debt to society.

                1. the question of a state denying voting rights to felons who served their time and paid their debt to society

                  But the question in this case concerned felons who had served their time but had not yet paid their debt to society in that they had not, for example, paid victim restitution that they had been ordered to pay as a part of their sentence, but they nevertheless wanted to have their voting rights restored. What’s wrong with withholding voting rights as an incentive to pay restitution? What about the victims?

                  1. swood…You know, if we were talking about holding up a driver’s license as opposed to preventing felons who served their time from voting at all, I would be much more inclined to agree. Taking away the right to vote (in a federal election) over a financial debt (levied by the state of FL) strikes me as just wrong.

                    1. Actually, we’re taking away the vote for the felony that was voluntarily committed and we’re not restoring it until the felon makes the victim whole. What’s wrong about that?

        2. It’s only a huge insurmountable obstacle for some people. And those are the only people the decision affects.

          I have to pay taxes for my guns and ammo, and taxes on my internet access to engage in free speech, and fuel taxes for my right to drive to a protest march or the polls for that matter, etc.,

          Maybe you could find some people who can afford guns and ammo, but can’t quite scratch up the tax, and bring a class-action suit.

          You don’t need internet access to engage in speech, any more than you need to own a radio station. Nor do you need to drive to the polls. I myself walk to my polling place, for example.

          As to your question, here’s the court, as quoted by Post:

          [T]he Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.

          1. …and thank you for a unhelpful, mean-spirited, and frankly rather stupid answer that takes a quote out of context.

            1. I didn’t think it was that snarky. Maybe the bit about guns, so OK.

      2. Yeah, I know it was a referendum, and that it passed with a lot of votes that weren’t Democratic. Heck, if I lived in Florida, I’d have voted for it myself; I think that, once somebody has paid their debt to society, they should be restored ALL their rights. Voting, gun ownership, you name it. No second class citizens!

        Doesn’t change that Democrats, as a political grouping, are hot for felon re-enfranchisement because felons vote heavily Democratic.

        1. Brett’s partisan telepathy strikes again!

          Sometimes people do things that help themselves and are moral, and they do it for the moral reason!!

          1. Sometimes people do things that help themselves and are moral, and they do it for the moral reason!!

            Sarcastr0, my experience is people tend to do things out of self-interest. The moral reasoning and justification are secondary.

            1. That’s not my experience. It sounds like you’ve only met a-holes.

              Altruism is a real thing that exists.

              1. It (altruism) is a real thing, Sarcastr0; I agree. My experience is probably a very different one than yours, and has lead me to the conclusion that people do tend to act in their own self-interest. To me, that is the default setting.

                1. Must be a sad world to live in.

  5. “…re-disenfranchise” is a real word.”

    I guess this post would make Prof. Post an antiredisenfranchiseatarian.

    1. It may be a real word, but it might more gracefully have been cast as, “re-disfranchise.” Historian C. Vann Woodward practiced the use of “disfranchise,” instead of “disenfranchise.” I think the former both reads more naturally, and often better matches circumstances. To “disenfranchise,” seems to imply taking voting rights from people who previously exercised them, but the circumstances where the word was used more often applied to people who had never been able to vote previously.

  6. It looks like restoring the right to gun ownership in FLA requires meeting the same standards, so I guess it’s a wash.

    In order to qualify for restoration of your gun rights, you must meet the following criteria:
    All sentences imposed for your most recent felony conviction must be completed, including all conditions of supervision. This includes parole, probation, community control, control release, and conditional release.
    All sentences, including probation, must have been completed for at least eight (8) years.
    You may not owe any outstanding fines or liabilities totaling more than $1,000 resulting from any criminal conviction OR traffic infraction.
    You may not owe any outstanding victim restitution, including any restitution pursuant to a court order or civil judgment.

    1. That is great information, and helpful for the discussion, such as it is. So, when are the Democrats going to line up to advocate for this imposition to be removed?

      1. If the Democrats end up winning this suit, I would recommend that a gun rights group bring a challenge to that suit on behalf of indigent felons.

        Look, I get called a gun grabber around here often enough, but there’s a difference between regulating guns because they pose dangers, which is what the gun control debate is usually about, and regulating guns because a poor or indigent person wants to own one. You can justify some level of felon disarmament, obviously (especially as to violent offenders), but not a rule that says rich felons can get their guns back but poor felons cannot.

        1. I am fundamentally glad you wrote that. Much gun control is about setting up not just financial barriers to gun ownership as a way to reduce prevalence, but there are also regulatory burdens such that the average person who works an hourly job can’t take time of repeatedly to go get notarized forms dropped off in person, etc. etc. (that got upheld mostly in Heller II and Heller III.)

          1. I think you are right, and the same criticism also applies to most state abortion restrictions.

    2. “It looks like restoring the right to gun ownership in FLA requires meeting the same standards”

      The gun restoration requirement seems to be a little more stringent. There’s an additional eight-year-post-sentence (but not payment) waiting period for guns, which is plausible as a safety rationale. The fines can be from anything, including traffic tickets, which seems fishy, but the $1,000 limit is more forgiving than Amendment 4.

  7. “Their claim boils down to this: SB 7066 draws a line between individuals who have, and individuals who have not, paid off their LFOs; it treats individuals on different sides of that line differently, even if they are otherwise identical in every relevant way (same crime, same sentence, same LFO obligations); this differential treatment serves no legitimate governmental purpose whatsoever.”

    That’s odd. The initial lawsuit was filed “challenging SB 7066 and Amendment 4” and was “consolidated with other cases that raised similar challenges to Amendment 4’s LFO requirement.” The court’s severability discussion is all about Amendment 4 rather than SB 7066. I leave for others the question of whether David Post ignored substantial portions of the case he is purporting to explain, didn’t understand them, or is just lying about what they say.

    “I leave for others—as the court left for others—the question of whether Florida’s Republican law-makers were motivated, in enacting SB 7066, by anything other than a desire to reduce the impact of Amendment 4 on the Republican party’s electoral prospects”

    Instead making chicken shit accusations, I wonder if David Post can identify where the court left the discussion of discriminatory intent to others, or even where it was raised as an issue? If David Post is referring to the section of the decision where the court dismisses Florida’s argument that the plaintiffs haven’t proven discriminatory intent because discriminatory intent isn’t an element of wealth discrimination claims, that seems like a pretty dishonest phrasing. And I leave for others the question of why David Post didn’t explain that the attorneys for one of the sponsors of Amendment 4 represented to the Florida Supreme Court that repayment of LFOs was included in the “terms of sentence” that needed to be completed before trying to insinuate that there was something improper about the enactment of SB 7066.

    “Governor DeSantis has said that he is prepared to appeal this decision. I don’t think he will have much success going that route, inasmuch as the reasoning in this opinion strikes me as eminently sound.”

    I leave for others the question of whether David Post paid enough attention to the decision he is purporting to explain to realize that this decision creates a split with the Sixth Circuit and the Washington State Supreme Court.

    “But the court’s decision here leaves open other means by which the State can frustrate the goal of re-enfranchising as many people as possible in accordance with the spirit of Amendment 4.”

    Florida is implementing Amendment 4. It’s Amendment 4 that is being partially enjoined. As the district court explained, “Amendment 4’s LFO requirement, as applied to those who genuinely could not pay, constituted wealth discrimination in violation of the Fourteenth Amendment.” And there is a possibility that the results of the full trial on the merits could result in the entirety of Amendment 4 being enjoined, with no reenfranchisement for anyone. I leave for others the question of how David Post could purport to explain a decision affirming a preliminary injunction without knowing what was being enjoined.

    1. I hope Post responds to this comment, as he occasionally does.

      1. Dunno if Prof. Post is gonna be enthusiastic about engaging with a post that calls his post ‘chicken-shit accusations.’

        1. I guess it’s true, chicken shits really do flock together.

        2. The beginning of wisdom is calling something by it’s true name.

          1. But somewhere in the middle of wisdom is recognizing the difference between civil discourse and childish name-calling.

            1. Agreed. David Post engaged in childish name calling, not civil discourse. At least later he had the guts to actually say what he was thinking instead of leaving it to others. That part was at least adolescent name calling. If he had any basis for his name calling, then it would have been grown up name calling, which is part of civil discourse.

              1. Not sure you’re clear on what name-calling means.

    2. jph12 seems to misunderstand a number of the points I was making in the O.P.
      1. The initial lawsuit was filed “challenging SB 7066 and Amendment 4” and was “consolidated with other cases that raised similar challenges to Amendment 4’s LFO requirement.” The court’s severability discussion is all about Amendment 4 rather than SB 7066. I leave for others the question of whether David Post ignored substantial portions of the case he is purporting to explain, didn’t understand them, or is just lying about what they say.
      I can’t quite tell what point you’re trying to make here. Amendment 4 had no “LFO requirement” at all; that was added by SB 7066 as an interpretive gloss on the meaning of the language in Amendment 4 regarding “completion of all terms of sentence,” which SB 7066 says meant “discharging all LFOs.” So I haven’t the faintest idea what you’re trying to say.
      2. I had written: “I leave for others—as the court left for others—the question of whether Florida’s Republican law-makers were motivated, in enacting SB 7066, by anything other than a desire to reduce the impact of Amendment 4 on the Republican party’s electoral prospects.”
      You reply: “Instead making chicken shit accusations, I wonder if David Post can identify where the court left the discussion of discriminatory intent to others, or even where it was raised as an issue? If David Post is referring to the section of the decision where the court dismisses Florida’s argument that the plaintiffs haven’t proven discriminatory intent because discriminatory intent isn’t an element of wealth discrimination claims, that seems like a pretty dishonest phrasing.
      I’m not sure what “chicken shit allegations” I included in a paragraph in which I say I’m not going to address the question of what motivated the legislature to enact SB 7066. That is hardly an allegation, let alone a chicken shit one.
      And let me get this straight: you want to show you you where the court didn’t discuss the motivations of the Republican legislators? In the same places where the court didn’t discuss the Miami Heat’s prospects for winning the NBA championship, or the effect of coal-fired electrical generating stations on climate change, or the Mueller Report.
      3. And I leave for others the question of why David Post didn’t explain that the attorneys for one of the sponsors of Amendment 4 represented to the Florida Supreme Court that repayment of LFOs was included in the “terms of sentence” that needed to be completed before trying to insinuate that there was something improper about the enactment of SB 7066.
      What, exactly, are you talking about? I’m sure that the attorneys for many of the interested parties said many interesting things in court – you think I need to explain why I’ve left all of them out? You think that this representation in one of the related court cases, by one of the attorneys for one of the sponsors (!) of amendment 4 is of some sort of critical significance? Hmm … you need to explain your position a little better if that is the case.
      4. Florida is implementing Amendment 4. It’s Amendment 4 that is being partially enjoined. As the district court explained, “Amendment 4’s LFO requirement, as applied to those who genuinely could not pay, constituted wealth discrimination in violation of the Fourteenth Amendment.” And there is a possibility that the results of the full trial on the merits could result in the entirety of Amendment 4 being enjoined, with no reenfranchisement for anyone.
      That is simply incorrect. Amendment 4 has not been enjoined, and there is no possibility that it will be enjoined in its entirety after a full trial on the merits, because no party to the trial is asking for that relief. You’re confused about the procedural posture of this case. Here’s what the court said about the injunction below:
      “The cases were consolidated in the United States District Court for the Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4.” That’s what the injunction covered. The court is saying: Amendment 4 is part of the Florida Constitution, and must be enforced; in enforcing its terms, you, State of Florida, may not deny the vote to persons on the grounds of their inability to pay LFOs.” The injunction does not, as you seem to imply, enjoin the state in any way from enforcing Amendment 4.

      1. “I can’t quite tell what point you’re trying to make here. Amendment 4 had no “LFO requirement” at all; that was added by SB 7066 as an interpretive gloss on the meaning of the language in Amendment 4 regarding “completion of all terms of sentence,” which SB 7066 says meant “discharging all LFOs.” So I haven’t the faintest idea what you’re trying to say.”

        What I’m saying is that you’re wrong about Amendment 4, and pretty much everything else you say about this case. The LFO requirement is part of the “terms of sentence” that must be completed as part of Amendment 4.

        The court explains it pretty clearly. “Pursuant to his statutory authority, see Fla. Const. art. IV, § 1(c), Florida’s Governor, Ron DeSantis, requested an advisory opinion from the Florida Supreme Court on August 9, 2019 regarding whether Amendment 4’s language mandating completion of “all terms of sentence” itself requires payment of LFOs. On January 16, 2020, while this appeal was pending, the Florida Supreme Court issued an advisory opinion holding that it does.”

        References to the LFO requirement in Amendment 4, and confirmations that the injunction is about Amendment 4, are legion.

        “The plaintiffs claim that Amendment 4’s requirement that they pay their LFOs as a precondition to voting, as applied to them and to the extent that they are genuinely unable to pay, violates the Equal Protection Clause of the Fourteenth Amendment.”

        “and because under Florida law the unconstitutional application of the LFO requirement is easily severable from the remainder of Amendment 4, we affirm the district court’s preliminary injunction.”

        “This interest, however, is not plausibly furthered by the distinction Amendment 4 draws between those who have paid their financial obligations and those who have not.”

        “The plaintiffs have not so much as suggested that the LFO requirement embodied in Amendment 4 as applied should be struck down either because it was purposely designed for reasons of race or that it has a racially disproportionate effect.”

        So I haven’t the faintest idea why you can’t understand this.

        “I’m not sure what “chicken shit allegations” I included in a paragraph in which I say I’m not going to address the question of what motivated the legislature to enact SB 7066. That is hardly an allegation, let alone a chicken shit one.”

        No, that’s a perfect example of a chicken shit allegation. That you are trying to play coy is just more of the same.

        “And let me get this straight: you want to show you you where the court didn’t discuss the motivations of the Republican legislators?”

        I can point to where you “left for others” as part of your chicken shit allegation. I want you to show me where the court said they were leaving that question for others. Of course, it’s going to be hard, because the bulk of the discussion is about Amendment 4 rather than SB 7066, but have at it.

        “In the same places where the court didn’t discuss the Miami Heat’s prospects for winning the NBA championship, or the effect of coal-fired electrical generating stations on climate change, or the Mueller Report.”

        I leave for others the question why you didn’t note that the court left for others the Miami Heat’s prospects for winning the NBA championships in your piece. Oh, who am I kidding? It’s because you didn’t want to make a chicken shit allegation about the Miami Heat, just the Florida Republicans.

        “What, exactly, are you talking about? I’m sure that the attorneys for many of the interested parties said many interesting things in court – you think I need to explain why I’ve left all of them out? You think that this representation in one of the related court cases, by one of the attorneys for one of the sponsors (!) of amendment 4 is of some sort of critical significance? Hmm … you need to explain your position a little better if that is the case.”

        It’s the kind of thing a responsible person might want to look into before making chicken shit allegations against people. I mean, the Florida Supreme Court thought it was significant so I feel pretty pretty good about thinking it was significant as well.

        It’s pretty clear that you had your opinions formed before you read this decision, didn’t do any other research, read the decision seeking confirmation of your previous opinion, and fired off a largely misrepresentative blog post in response.

        “That is simply incorrect. Amendment 4 has not been enjoined, and there is no possibility that it will be enjoined in its entirety after a full trial on the merits, because no party to the trial is asking for that relief. ”

        Really? How do you explain this then?

        “Finally, the State says that to the extent the LFO requirement as applied to the plaintiffs violates the Equal Protection Clause, this application cannot be severed from Amendment 4 as a whole.FN13 Therefore, rather than affirming the partial injunction granted by the district court, the State argues that we must enjoin Amendment 4 as a whole. . . . It is the State’s burden to show that Amendment 4 would not have been adopted absent the unconstitutional application of the LFO requirement to those who cannot pay. . . . It simply argues that the purpose of Amendment 4 was not merely to re-enfranchise felons but to re-enfranchise felons who have “paid their debt to society,” and that the latter qualification was a critical prerequisite to the Amendment’s passing. This strikes us as a plausible characterization of the evidence in the record as far as it goes, but again, the State’s assertion in this regard is speculative. It is altogether unclear whether the people of Florida would have voted differently if they knew that the Amendment they adopted could not be constitutionally applied to those felons who were genuinely unable to pay despite their good faith efforts to do so.”

        Sure seems like a possibility to me. Florida will only have to prove a swing of 5% of voters (though proving that will be difficult because it’s all hocus pocus).

        “You’re confused about the procedural posture of this case.”

        No, I understand the procedural posture. I just understand the rest of the case as well.

        “Here’s what the court said about the injunction below:”

        No, that’s your misrepresentation of what the court said about the injunction below. Here is what the court actually said about the injunction below, in its own words.

        “The court found that the plaintiffs had shown a substantial likelihood of success on the merits of their equal protection claim—that Amendment 4’s LFO requirement, as applied to those who genuinely could not pay, constituted wealth discrimination in violation of the Fourteenth Amendment.”

        Notice that the LFO requirement is part of Amendment 4 (legion, I tell you, legion)? And that it is Amendment 4 that constituted wealth discrimination?

        But wait, there’s more!

        “The only provision enjoined by the district court, as applied to the plaintiffs, is the application of the phrase “all terms of sentence” to require payment of legal financial obligations to those genuinely unable to pay them. This application can obviously be excised, leaving Amendment 4 as a complete act.”

        Golly, look at that. More talk about how the district court partially enjoined Amendment 4.

        The Court is very clear that (1) Amendment 4 is part of the Florida constitution, (2) the LFO requirement is part of Amendment 4, (3) the LFO requirement in Amendment 4 is likely to be unconstitutional as applied to truly indigent defendants, and (4) the application of Amendment 4’s LFO requirement to truly indigent defendants is enjoined.

      2. Gee, let’s see what the District Court had to say.

        “Under Florida law, a voter-initiated constitutional amendment may go on the ballot only if its language and its ballot summary are approved in advance by the Florida Supreme Court. See Fla. Const. art. IV § 10; see id. art. X, § 3(b)(10). When the proponents of Amendment 4 sought the Florida Supreme Court’s approval to place the amendment on the ballot, the issues of fines and restitution were explicitly addressed.

        The only speaker at the oral argument in the Florida Supreme Court was the proponents’—that is, the framers’—attorney. He said the critical language “all terms of sentence” [**20] means “anything that a judge puts into a sentence.” ECF No. 148-1 at 9. A justice asked, “So it would include the full payment of any fines”? Id. The attorney responded, “Yes, sir.” Id. Another justice asked, “Would it also include restitution when it was ordered to the victim . . . as part of the sentence?” Id. at 17-18. The attorney answered, “Yes.” Id. Yet another justice suggested this might “actually help the State” by providing an incentive for payment. Id. at 19. . .

        The proponents of an amendment ought not be able to tell the Florida Supreme Court that the amendment means one thing but later, after adoption, assert the amendment means something else.”
        (Jones v. DeSantis (N.D.Fla. 2019) 410 F. Supp. 3d 1284, 1295.)

        So tell me again how mean the Republicans were for enacting a law that implemented Amendment 4 exactly the way its proponents claimed it worked.

      3. I do think I can explain what’s so confusing to you about the case. You see, initially the plaintiffs only challenged SB 7066. Like you, they wanted to blame it on those mean nasty Republicans instead of the people of Florida. But that would have gotten the case dismissed once the Florida Supreme Court held that Amendment 4 included the LFO obligation as its proponents represented. So the district court quit sensibly dealt with that problem without requiring everyone to start over.

        “The flaw in the Secretary’s position is that she reads the plaintiffs’ claims too narrowly. The individual plaintiffs assert, among other things, that the State cannot [*1292] preclude them from voting just because they lack the financial resources to pay financial obligations. And the plaintiffs [**12] assert the State’s process for restoring the right to vote is so flawed that it violates the Due Process Clause. The organizational plaintiffs make the same claims on behalf of felons whose rights they assert. If the plaintiffs are correct, the constitutional violations can be remedied through an appropriate injunction. Indeed, this order issues an injunction, though not one as broad as the plaintiffs request. That the plaintiffs do not assert Amendment 4 is itself unconstitutional on its face does not change this.”
        (Jones v. DeSantis (N.D.Fla. 2019) 410 F. Supp. 3d 1284, 1291-1292.)

        So instead of reading the 11th Circuit’s decision in light of what it actually said, you read it seeking confirmation of your belief that the mean nasty Republicans did something wrong in enacting SB 7066. That led you to ignore the veritable cornucopia of evidence that the LFO was part of Amendment 4 and the injunction was partially enjoining Amendment 4. Then you embarrassed yourself by writing a whole post purporting to explain a decision (and making chicken shit accusations) even though you completely misunderstood it. Then you really embarrassed yourself by ignoring all the quotes in my initial response and still trying to claim the decision was about SB 7066 (despite never being able to quote anything saying that SB 7066 was enjoined–didn’t that give you the smallest measure of concern?). Those are some powerful partisan blinders.

  8. According to a 2012 law review article, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt,

    “In sum, all of the appellate courts that have considered the issue have concluded that payment of LFOs before the restoration of voting rights is constitutional, regardless of a person’s ability to pay. Because Richardson v. Ramirez allows courts to render felons’ voting rights less than fundamental, courts have engaged in the use of this legal formality and have avoided the implications of permanent or long-term disenfranchisement of low-income ex-felons who cannot pay LFOs.”

    This “legal formality” seems to be at the root of the question in this case. The 11th Circuit held that heightened scrutiny was appropriate for evaluating these claims, apparently in part because a fundamental right (voting) was involved whereas other courts have relied on Richardson v. Ramirez for the proposition that felons possess no fundamental right to vote if state law has removed that right as a result of the felony conviction. David Post, above, says that this is an “egregious misreading” of Richardson. He insists that Richardson did not say that felons have no fundamental right to vote, but rather that the 14th Amendment expressly sanctions a denial of voting rights to felons. It is apparently on the basis of this distinction that Post would say that these felons still possess a fundamental right to vote, making heightened scrutiny appropriate.

    1. swood100: I think you’ve stated the question correctly. Richardson v. Ramirez does not say that felons do not have a “fundamental right to vote”; it says that States may abridge their fundamental right to vote because the Constitution expressly contemplates that they may do so if they choose to do so. The state can punish you for falsely yelling “Fire!!” in a crowded theater; that doesn’t mean that people don’t have a “fundamental right” to free speech, but rather that the fundamental right can be impinged upon in the right circumstances. Florida may constitutionally interfere with the fundamental right of felons to vote; but if it decides to restore voting rights to some felons but not others, it must have a compelling reason for drawing the line between those that get their rights restored and those that don’t. Florida can punish people who yell “Fire!” in a theater – but it cannot, say, punish only Muslims who do so and not others.

      1. Florida may constitutionally interfere with the fundamental right of felons to vote; but if it decides to restore voting rights to some felons but not others, it must have a compelling reason for drawing the line between those that get their rights restored and those that don’t.

        Your argument is that the refusal to reinstate voting rights constitutes an abridgment of the fundamental right to vote and so must be narrowly tailored to further a compelling state interest. However, the state argues that the abridgment of this right to vote took place when the person was convicted of a felony, and is a fait accompli. That right has been revoked, consistent with the equal protection of the laws. Now the issue is whether the person has satisfied all the requirements of his or her sentence, which would make him or her eligible for a reinstatement of voting rights.

        If victim restitution was a part of the sentence why does Florida need more than a rational reason to conclude that this part of the sentence also must be completed before any felon becomes eligible for reinstatement? Does a victim’s interest in restitution pale in significance compared to the felon’s interest in restoration of voting rights that he voluntarily abandoned as a result of his own criminal conduct? Is that a policy judgment that the constitution requires? Are convicted felons sympathetic characters? Are we inclined to conclude that they got a raw deal and deserve to be released from their obligations while their victims probably can take care of themselves? After they are released from prison are they also to be automatically released from any restitution obligation simply because they are penniless? Why is it not eminently rational to hold back their voting rights as an incentive for them to make restitution for the harm they voluntarily caused? In what way would this violate their rights to equal protection of the laws? The same restitution requirements apply to everyone, and the amount typically depends on the magnitude of the injury that he or she caused.

        1. Does a victim’s interest in restitution pale in significance compared to the felon’s interest in restoration of voting rights that he voluntarily abandoned as a result of his own criminal conduct?

          The victim’s interest in restitution from someone who cannot pay the money is nonexistent.

          1. It’s certainly discounted, but it’s not nonexistent any more than any other judgment creditor’s interest in the judgment is when the judgment debtor is indigent. Indigent now does not mean indigent forever.

          2. The victim’s interest in restitution from someone who cannot pay the money is nonexistent.

            Why should it be dispositive that the criminal cannot pay the whole thing now upon being released from prison? What’s wrong with giving him years to pay it off, at the end of which he can have his voting rights restored? It’s not like he found himself in this fix through no fault of his own. He knew it was a crime and he did it anyway.

            1. He knew it was a crime and he did it anyway.

              Or maybe he didn’t. (Know it was a crime. Ignorance of the law is no excuse, after all. Or maybe he didn’t do it anyway.)

              But in any case, what purpose it does it serve to refuse to restore his voting rights when he’s released simply because he’s poor? What rational connection is there between them?

              1. Or maybe he didn’t. (Know it was a crime. Ignorance of the law is no excuse, after all. Or maybe he didn’t do it anyway.)

                Isn’t it a fair assumption that convicted felons committed the crime and knew that what they were doing was wrong? Surely you’re not suggesting that voting rights should be restored because Florida felons probably lack any mens rea.

                But in any case, what purpose it does it serve to refuse to restore his voting rights when he’s released simply because he’s poor? What rational connection is there between them?

                The rational connection is that withholding voting rights provides an incentive for him to make his victim whole. Why isn’t this rational? The fact that he’s poor just means that it will take some time for the felon to fulfill this obligation. Why should it relieve him of it entirely? The felon lost his voting rights through his own intentional criminal conduct, which caused financial harm to a victim who still bears that financial burden. Now the felon would like his voting rights to be restored but would like the financial burden his actions created to remain with the victim instead of his having to pay that himself over a period of years. Does the criminal arouse your sympathy here? All in all would you be content to just leave the financial burden with the victim? Is it your position that the state has no rational interest in creating incentives for criminals to repay their victims?

                1. We don’t use taking away rights as an incentive.

                  1. We don’t use taking away rights as an incentive.

                    The right was not taken away as an incentive. It was taken away for commission of a felony. And we do deny restoration of rights as an incentive.

                    The state may, within the bounds of the Constitution, strip convicted felons of their voting rights. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). Having lost their voting rights, Plaintiffs lack any fundamental interest to assert. See Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir.1986) (“It is undisputed that a state may constitutionally disenfranchise convicted felons, and that the right of felons to vote is not fundamental.” …We find that the state’s interests of encouraging payment of child support and compliance with court orders, and requiring felons to complete their entire sentences, including paying victim restitution, supply a rational basis for the challenged statutory provisions sufficient to pass constitutional muster. Johnson v. Bredesen

                2. Isn’t it a fair assumption that convicted felons committed the crime and knew that what they were doing was wrong?

                  Possibly to the first, probably not to the second. (I’m not saying that they probably didn’t know; I’m saying that it’s probably not a fair assumption that they knew.)

                  The fact that he’s poor just means that it will take some time for the felon to fulfill this obligation. Why should it relieve him of it entirely?

                  Huh? He’s not relieved of any financial obligations; he still owes the money.

                  Is it your position that the state has no rational interest in creating incentives for criminals to repay their victims?

                  And you think telling a poor person that he can’t vote will incentivize him to get rich?

                  1. I’m saying that it’s probably not a fair assumption that they knew.

                    It sounds like you assume that many of those convicted of felonies were caught unawares that they were breaking the law. It would seem unlikely that such people could owe much in the way of victim restitution since who can claim that he or she was unaware that causing harm or financial injury to another person would be unlawful? Agreed?

                    And you think telling a poor person that he can’t vote will incentivize him to get rich?

                    This is essentially the argument of the 11th Circuit in this case: that these people really don’t care about voting so it is irrational for the state to assume that this can provide any incentive to pay any amount that they owe. Also they assumed that those who are truly indigent should not be required to pay over time because they will be unable to do so (they’re a little fuzzy on why not).

                    The general rule, though, seems to be that a person can be required to make bona fide efforts to pay. I don’t know why the 11th Circuit assumes that this is out of the range of these felons. Why couldn’t they pay $10 per week to their victims? Wouldn’t that be better than nothing?

  9. At some point, the number of bigots attracted by the Volokh Conspiracy says something about the Volokh Conspirators.

    For a few of the Conspirators, whose contributions the bigots customarily dislike, it says one thing.

    For most of the Conspirators, however, it says something else.

    Carry on, clingers.

  10. So I start reading…OK….OK..Rational…fine…oh good, it looks like it isn’t a partisan rant for once from David Post.

    And then… BAM “We know the only real reasons republicans do this”

    OK, writing off this post too as a partisan screed.

  11. I leave it to others to mention that this came from a panel of three Clinton judges.

    Oh, OK I’ll mention it.

    1. Oh, and I see it’s an appeal from a decision by….another Clinton judge.

  12. Slightly puzzled by the notion that it’s unconstitutional to restrict voting for felons who have not paid their fines, because poor felons are thereby disadvantaged in comparison to wealthy felons.

    But it’s constitutional to levy fines as punishment even though the fines are a heavier burden on poor criminals than wealthy ones.

    1. Perhaps the need for the state to levy criminal fines passes strict scrutiny, but the need for the state to disenfranchise non-payers of fines doesn’t? It’s an interesting question.

    2. It seems entirely consistent with the rule that it’s constitutional to impose fines as penalties, but unconstitutional to lock people up for inability to pay said fines.

    3. Slightly puzzled by the notion that it’s unconstitutional to restrict voting for felons who have not paid their fines, because poor felons are thereby disadvantaged in comparison to wealthy felons.

      That’s not it. The notion is that it’s unconstitutional to restrict voting (and other rights, for that matter, though they weren’t at issue in this case) for felons who have not paid their fines due to the fact that they can’t afford to pay their fines, because poor felons are thereby disadvantaged in comparison to wealthy felons.

      1. That’s not it. The notion is that it’s unconstitutional to restrict voting…for felons who have not paid their fines due to the fact that they can’t afford to pay their fines…

        Actually, voting rights were lost as a result of conviction of a felony. A principal question is whether the felon also lost voting as a fundamental right, which controls whether the courts will use strict scrutiny in evaluating conditions placed on reinstatement of voting rights, such as payment of court costs, fees, and victim restitution.

        1. It wouldn’t even satisfy the rational basis test (if courts didn’t treat that as not a test at all, anyway).

  13. I haven’t read this opinion, nor do I intend to. But it’s nonsensical on its face (notwithstanding 78 pages of legal sophistry). The state had no obligation to restore the franchise to convicted felons; many state do not have any such law at all. Doing so is a matter of grace, not right. If it chooses to restore the franchise it can do so on whatever terms it chooses.

    1. This from a resining human…Your conviction beats the Constitution!

      Never mind your reasoning allows poll taxes, 15th Amendment be dammed.

    2. “But it’s nonsensical on its face (notwithstanding 78 pages of legal sophistry).”

      Nah, don’t blame the opinion for David Post’s butchering of it. I don’t know if they’re right, but it’s certainly not nonsensical.

      “The state had no obligation to restore the franchise to convicted felons;”

      That is certainly true, and the opinion agrees completely.

      “many state do not have any such law at all.”

      Not really. There’s only one state that permanently disenfranchises all felons (and two states that don’t impose any restrictions on felons).

      “Doing so is a matter of grace, not right. If it chooses to restore the franchise it can do so on whatever terms it chooses.”

      No. There are all kinds of things the government does that it doesn’t have to do. It still has to follow the Constitution when doing them.

    3. If it chooses to restore the franchise it can do so on whatever terms it chooses.

      I’m not sure of my wisdom in responding to someone who says, “I’m not smart enough to read an opinion, but I know it’s wrong anyway,” but nevertheless, I will. This is fundamentally incorrect. That a government is not required to do something at all does not mean that if it does something it can do it on whatever terms it chooses.

      A government is not required to have a welfare program, but that does not mean that if it does it can offer welfare only to Christians.

      A government is not required to have public parks, but that does not mean that if it does it can restrict speech in those parks only to non-political topics.

      A government is not required to have elections for judges, but that does not mean that if it chooses to do so it can restrict voting for them to those who pay a $100 fee.

      A government is not required to issue drivers’ licenses, but that does not mean that if it chooses to do so it can issue them only to people who say nice things about the governor.

    4. Laird: The state had no obligation to restore the franchise to convicted felons; many state do not have any such law at all. Doing so is a matter of grace, not right. If it chooses to restore the franchise it can do so on whatever terms it chooses.
      That is – thankfully! – not correct. The state has no obligation to provide free lunches to schoolchildren, or to provide grants for biomedical research on the coronavirus, or to provide public library services, or to run a state university … But if it provides any of these things, it may not provide them only to white people, or to Christians, or to women, or to registered Republicans.

      1. Post: “That is – thankfully! – not correct. The state has no obligation to provide free lunches to schoolchildren, or to provide grants for biomedical research on the coronavirus, or to provide public library services, or to run a state university … But if it provides any of these things, it may not provide them only to white people, or to Christians, or to women, or to registered Republicans.”

        Does this logic apply to CCWs? Because California requires a person to spend at least $500 to obtain a CCW that is valid for two years. And very two years another set of expenditures of at least $200 or more is required to keep it. There is no exception for someone who is indigent.

        How is that acceptable but a state requirement to re-enfranchise felons only after they have completed the terms of their sentences is not?

  14. A simple solution to this, and indeed something that I think would be a good idea anyway, would be for the State of Florida to offer work (of a ditch digging nature) remunerated at the State minimum wage, to anyone who is concerned that (s)he is unable to pay a fine.

    1. You think a special debtor’s minimum wage manual labor corp would be a good idea?!

      1. Whyever not, so long as it’s voluntary ?

        Why would anyone be against indigent folk having the opportunity to pay off their debts, if the market is not offering them a job that will enable them to do it ?

        1. Because they might refuse the opportunity, and have that held against them, I suppose.

        2. Because inserting labor into our penal system is going to set up some extremely perverse incentives.

          Because individual dignity exists even for criminals.

        3. Because they would be taking work away from hard working illegal immigrants.

      2. You think a special debtor’s minimum wage manual labor corp would be a good idea?!

        I get the impression that you believe that convicted felons who are ordered to pay restitution to their victims and who decline to do so when given an opportunity should have our full support in this, perhaps because they are no doubt victims as well. Maybe you are suggesting that they should be insulted by the suggestion that they should eschew public assistance and work at minimum wage if this is made available to them and they cannot find a higher-paying job, since such jobs lacks dignity.

        1. I like restitution, swood. I don’t like forced labor, though. And this strongly incentivized labor stinks of that.

          I do think dignity is important to maintain if you ever want to have hope of reform.

          Reform, mercy, humanity, don’t appear to be part of your calculus. Just because they’re part of mine doesn’t mean I’m all for ignoring the rules.

          Telling the assumptions you make about all who don’t join you in dehumanization.

          1. “I do think dignity is important to maintain if you ever want to have hope of reform.”

            I think that people like to have dignity, and if they can have dignity, food, and a roof over their heads, without bothering to work for them, some percentage of the population will view that as a good deal.

            Unless we’re going to starve them or have them die of exposure, the only remaining thing we can deny people who decide to be parasites is dignity. So I’m fine with saying, “If they want dignity, let them earn it, by working.”

          2. I like restitution, swood. I don’t like forced labor, though. And this strongly incentivized labor stinks of that.

            Nobody is talking about forced labor camps. The suggestion was an offer of a minimum wage job to allow released felons to repay their obligations, specifically those who claim to be unable to find such a job elsewhere.

            Reform, mercy, humanity, don’t appear to be part of your calculus.

            The goal here is (a) to get the victim reimbursed for financial loss caused by the intentional acts of this felon, and (b) to get the felon to begin to accept personal responsibility for his actions. By “mercy” you apparently mean relief from the obligation to reimburse one’s victim and the adoption of an attitude that one is not responsible for one’s conduct. Could you explain how the goals of “reform, mercy, humanity” are satisfied by requiring the victim to personally sustain the financial injury caused by the criminal act of the felon, instead of requiring the person causing the injury to take this burden on himself, and can you elucidate what rational justifies the shifting of that obligation from the perpetrator to the victim?

            Telling the assumptions you make about all who don’t join you in dehumanization.

            How is it dehumanizing to require criminals to accept responsibility for their actions and repay their victims for the financial harm that they intentionally caused (to the extent that they are able), and to withhold voting rights until this is accomplished?

            1. You continue to speak as though I’m against restitution when I just think conditioning the franchise on it (or conditioning a menial labor corp on it) is not a proper method.

              You make the same error with DMN above. Your methods are the issue. You can’t seem to grok that because you have made a virtue out of not caring about the effect your methods have on these people.

  15. The author notes that this is an example of voter suppression, something the Republicans have worked at very hard over the years. What I can not understand is the Republican mindset that would work so hard to suppress voters and not work hard to build connections to voters. In a democracy you work to sell your ideas. The Republicans seem to have given up on the ideas of democracy and are more focused on creating a smaller electorate that buys their ideas. This seems shortsighted, like those who thought there would always be a need for typewriters and VCRs.

    1. “The author notes that this is an example of voter suppression, something the Republicans have worked at very hard over the years.”

      Hey, now. He said he was leaving the question of the motivation of the Republicans for others. He’s promised he totally wasn’t making any kind of accusation there. Are you calling David Post a liar?

  16. What is so hard about staying out of jail? Duh.

  17. The legislation may be bad policy, but I am inclined to agree that it simply confirmed to the terms of the amendment.

    I think the 11th Circuit erred in characterizing the case as people being denied the right to vote. But for the amendment and its implementing legislation, these are people who don’t have the right to vote. I don’t see how they can be compared with people who do have the right.

  18. Disfranchising felons may be suspect for a reason not yet mentioned above. Once again, it is necessary to mention sovereignty, because, as so often, the American system of government cannot be understood accurately without keeping sovereignty in mind.

    Voting is not the act of a subject of the law. Voting is done in the name of the People’s joint sovereignty. By voting, each voter exercises sovereign power. That matters, because the sovereign rules the government. The government can never rule the sovereign. It follows that ordinary legislation, state or federal, cannot be sufficient to deny voting power to any citizen.

    Legislation is a power delegated to government by the sovereign. Legislation cannot be used to constrain the sovereign. That is the same principle which forbids constitutional modifications done by statute.

    Governments do sometimes have constitutionally prescribed means for exercising sovereign power themselves. Constitutionally prescribed procedures for passing constitutional amendments are an example. I contend the impeachment powers of the two houses of congress are similar exercises of sovereign power by government, enabled under a specific delegation, under specific terms.

    Thus, for the same reasons, anything government does to disfranchise a member of the joint sovereignty, ought to be done by a constitutionally prescribed procedure, applied specifically to the person in question. The point is that government, lacking all delegated government power to restrict sovereignty, can only do so by mantling itself in sovereign power made available by an explicit and conditional grant from the sovereign itself. In that way, the actor becomes the sovereign itself, which alone has power sufficient to apply disfranchisement to one of its own members.

    Whether any of that has applicability to the convoluted questions raised by Florida’s actions I have not tried to untangle. I raise the issue in case it might simplify confusions.

    1. “The point is that government, lacking all delegated government power to restrict sovereignty”

      This, like so many of your pronouncements, is simply incorrect. So many words, so little understanding.

      “It follows that ordinary legislation, state or federal, cannot be sufficient to deny voting power to any citizen.”

      Yes, you go with that. You’ll have to ignore that 48 states plus the District of Columbia have ordinary laws that deny the voting power to certain citizens, that the Supreme Court has already said that these laws only need to pass rational basis scrutiny, but I’m sure you can get it done.

    2. It follows that ordinary legislation, state or federal, cannot be sufficient to deny voting power to any citizen.

      In this case, the stripping of voting rights was authorized (according to the Supreme Court in Richardson v. Ramirez) by the 14th Amendment, which acknowledged a state power to do this.

  19. My heart bleeds for these felons. Democrats wince when they are accused of being “pro-crime”, but, as illustrated here, they are. Criminals are a sizable and valuable constituency.

    When, for example, a man is sentenced to six months in jail AND a $1000 fine, the fine is obviously part of the sentence. The sentence is not complete until the fine is paid. If the defendant is truly unable to pay, then he may substitute community service under Florida law.

    1. Of course that has nothing whatever to do with the question here, which is whether requiring that man to pay all his LFO’s before being re-enfranchised is constitutional. And apparently it’s the vast majority of the citizens of Florida who are “pro-crime” by your definition, since they voted overwhelmingly to re-enfranchise ex-convicts.

      No one is questioning whether or not a fine is part of the sentence.

      1. It has everything to do with the question. The issue is the interpretation of “upon completion of all terms of sentence”. Does “all terms” include LFOs? I suggest that of course it does. But Post suggests that is a nefarious interpretation.

        A state is under no obligation to re-enfranchise felons at all, but having undertaken to do so, I believe it can certainly do so conditionally. And the court’s concern about a “wealth-based” equal protection violation goes too far, as that would apply to the imposition of any fine in the first place. (Of course, the Eighth Amendment prohibits “excessive fines”, but I don’t think that’s remotely applicable here.)

  20. There are a couple of thoughts.

    If a felon can pay the fines and restitution, but only do so over an extended period of time is that felon being discriminated against, if other felons with fewer resources are allowed to regain their voting rights without paying their fines and restitution?

    If on the other hand a felon has substantial illicit assets or income and no apparent ability to pay the fines and restitution, is that felon able to regain voting rights.

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