The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.