Background: Beginning in 1838, Florida’s constitution allowed the legislature to disenfranchise felons. Effective January 8, 2019, Amendment 4 of the Florida constitution added a provision automatically restoring the voting rights of felons upon completion of all terms of sentence including parole or probation. That same year, the legislature passed SB7066 which defines the language ‘all terms of sentence’ to include financial obligations included in the sentence and further clarified that these financial obligations must be paid for the person to be eligible to vote, even if the sentencing court converts them to a civil lien.
This case consolidates the cases of 17 individuals, each with at least one felony conviction, who have completed all prison or jail terms and all terms of supervision, and whose right to vote under Amendment 4 and SB7066 hinges on the payment of LFOs. The plaintiffs assert that the requirement to pay to vote is unconstitutional as applied to those who are unable to pay the amount at issue.
The District Court issued a preliminary injunction requiring the state to register the named plaintiffs. On appeal, the 11th Circuit ruled that the State cannot condition voting on the payment of an amount a person is genuinely unable to pay and upheld the injunction.
The Court held a virtual bench trial and issued its decision on May 24, 2020. The Court held that the State can condition voting on the payment of fines and restitution that a person is able to pay, but cannot condition voting on payment of amounts a person is unable to pay or on the payment of taxes, even those labeled fees or costs.
Holding: When a state decides to restore the right to vote to some felons but not others, the state must comply with the United States Constitution, including the First, Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Florida’s pay-to-vote system, as applied to those unable to pay, is subject to heightened scrutiny because it punishes more harshly solely on account of wealth by withholding access to voting. Heightened scrutiny requires an analysis of the legitimate governmental interests served by the provision. The State identified the interest in re-enfranchising only those felons who have completed their sentences as its sole legitimate interest. The State went further in its appeal identifying additional interests served by the pay-to-vote system including: punishment, enforcing its laws, debt collection, and administrative convenience. The court holds that the pay-to-vote system does not survive heightened or rational basis scrutiny and plaintiffs are entitled to prevail on their claim that they cannot be denied the right to vote based on failure to pay amounts they are genuinely unable to pay.
The court also applies a rational-basis scrutiny standard to the system as applied to those able to pay. If the question was whether the LFO requirement was rational as applied to those unable to pay, it would not pass because Florida’s disenfranchisement of these plaintiffs is not rationally related to any legitimate governmental interest. The State’s justifications for the pay-to-vote system: that a felon should be required to satisfy the felon’s entire criminal sentence before being allowed to vote; that the system provides an incentive to pay the amounts at issue; and that the state should be able to pursue the first two goals efficiently, do not justify requiring payment from those unable to pay. The court concludes that the system survives rational-basis scrutiny, only as applied to those who are able to pay.
The court also concludes that fees, not fines or restitution, are taxes because they are assessed regardless of whether a defendant is adjudged guilty, they bear no relation to culpability, and they are assessed for the sole or primary purpose of raising revenue to pay for government operations. The Twenty-Fourth Amendment precludes Florida from conditioning voting in federal elections on payment of these fees and costs. Because the Supreme Court has held that what the Twenty-Fourth Amendment prescribes for federal elections, the Equal Protection Clause requires for state elections, Florida also cannot condition voting in state elections on payment of these fees and costs.
The court finds no evidence that SB7066 was motivated by race and similarly, the court finds no evidence of gender bias or reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.
The court holds that a state does not violate the Excessive Fines Clause by refusing to re-enfranchise a felon who chooses not to pay a fine that the felon has the financial ability to pay and concludes that, if implemented in a timely manner with adequate, intelligible notice, the advisory-opinion procedure and attendant immunity will satisfy due process.
With respect to implementation, the Court finds that any person who was represented by a Public Defender is presumptively unable to pay their financial obligations. The court allows the Division to rebut that presumption with reliable information, but if it does not, the Division of Elections must register the person. In other cases, the order requires the Division of Elections to provide an advisory opinion to individuals who are unsure of their eligibility status that sets out the amount of their unpaid financial obligations within days. The injunction also prescribes a method for determining ability to pay which provides a rebuttable presumption based on facts that are objectively determinable without undue difficulty and that, in the overwhelming majority of cases, correlate with genuine inability to pay. When the presumption applies, the injunction requires reliable information to rebut it. The injunction allows individuals to vote if they are otherwise eligible but have LFOs they are unable to pay.
The Eleventh Circuit granted the Defendants’ petition to hear the appeal en banc and on September 11, 2020 the en banc court reversed the judgment of the district court, vacated the challenged portions of its injunction, and lifted the stay of the cross-appeal. The decision allows Florida’s pay-to-vote system for people with past felony convictions to remain in place.
The court found that Amendment 4 and SB 7066: (1) do not violate the Equal Protection Clause; (2) do not violate the Twenty-Fourth Amendment; (3) do not violate the Due Process Clause and are not void for vagueness.
1. Equal Protection Clause: The court explained that the classification at issue is between felons who have completed all terms of their sentences, including satisfying legal financial obligations, and those who have not. Because the classification does not implicate membership in a suspect class, the court reviews it under the rational basis standard. The court noted that the panel that had previously reviewed the preliminary injunction incorrectly applied “‘some form of heightened scrutiny’ on the ground that Amendment 4 and [SB] 7066 invidiously discriminate based on wealth.” In rejecting that panel’s conclusion, the court explained that Florida disenfranchises all felons, regardless of wealth, who fail to complete any term of their criminal sentence, financial or otherwise, and further concluded that “wealth is not a suspect classification.” The court found that none of the U.S. Supreme Court’s precedents require “heightened scrutiny for the decision to condition reenfranchisement on the full completion of a criminal sentence.”
The court then determined that Florida has an interest in: (1) “disenfranchising convicted felons, even those who have completed their sentences”; and (2) “restoring felons to the electorate after justice has been done and they have been fully rehabilitated by the criminal justice system.” (emphasis in original). Those “twin interests in disenfranchising those who disregard the law and restoring those who satisfy the demands of justice are both legitimate goals for a State to advance.” The court explained that Florida’s classification between felons who have completed their full sentences and those who have not is rationally related to those interests, reasoning that “Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those who have not.”
2. Twenty-Fourth Amendment: The court concluded that “[s]everal features of the costs and fees at issue make clear that they are punishment for criminal wrongdoing,” and therefore are not taxes. The court noted that Florida caselaw holds that the costs of prosecution are criminal punishment for purposes of double jeopardy and that Fla. Stat. § 938.30(2) permits a court to convert a financial obligation into community service, and reasoned that neither would make sense “if costs and fees exist primarily to raise revenue and not to punish and rehabilitate offenders.” Finally, the court explained that even though one purpose of fees and costs may be to raise revenue, “that does not transform them from criminal punishment into a tax.” For these reasons, the court ultimately held that “court costs and fees and legitimate parts of a criminal sentence” (emphasis in original), and thus are not taxes under the Twenty-Fourth Amendment.
The court further reasoned that even if court costs and fees did constitute taxes, the Twenty-Fourth Amendment “does not prohibit every voting requirement with any causal relationship to the payment of a tax.” In other words, the court found that if “a State establishes a legitimate voter qualification for constitutionally legitimate reasons, it does not violate the Twenty-Fourth Amendment—even if the qualification sometimes denies the right to vote because a person failed to pay a tax.” The court ultimately concluded that because the justification for Amendment 4 and SB 7066 is not the failure to pay a tax, but rather Florida’s “legitimate interest in restoring to the electorate only fully rehabilitated felons who have satisfied the demands of justice,” Amendment 4 and SB 7066 would not be violative of the Twenty-Fourth Amendment even if court costs and fees were taxes.
3. Due Process Clause: First, the court explained that Florida statutes which criminalize willfully submitting false voter registration and wilfully voting while knowing he or she is not a qualified elector are not void for vagueness even though SB 7066 makes it difficult or impossible for some to determine whether they are eligible to vote. The court reasoned that “[f]elons and law enforcement can discern from the relevant statutes exactly what conduct is prohibited: a felon may not vote or register to vote if he knows that he has failed to complete all terms of his criminal sentence.” (emphasis in original). The court found that concerns that it may be “difficult to determine whether a felon has completed the financial terms of his sentence . . . arise not from a vague law but from factual circumstances that sometimes make it difficult to determine whether an incriminating facts exist.” (citing United States v. Williams, 553 U.S. 285, 306 (2008)).
Second, the court found that Florida did not deny the impacted prospective voters procedural due process. The court determined the argument failed “because any deprivation of that right was accomplished through the legislative process and the process for adopting a constitutional amendment, which provide more than adequate procedures for the adoption of generally applicable rules regarding voter qualifications.” The court reasoned that because the impacted prospective voters were deprived of the right to vote through legislative action as opposed to adjudicative action, they were given “all the process they were due before Florida deprived them of the right to vote and conditioned the restoration of that right on completion of their sentences.” The court further found that “Florida provides registered voters with adequate process before an individual determination of ineligibility” because voters are entitled to predeprivation notice and a hearing prior to being removed from the voter registration system and any voter dissatisfied with the result is entitled to de novo review of the decision in state court. The court concluded by noting that “[s]tates are constitutionally entitled to set legitimate voter qualifications through laws of general application and to require voters to comply with those laws through their own efforts.”
You can access the full opinion here.