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Analysis

A Major Court Victory for Voting Rights in Florida

A state law forcing people with a past conviction to pay to vote is unconstitutional, a federal judge found.

i voted
Shana Novak/Getty

Update July 1, 2020: The 11th Circuit Court of Appeals has agreed to hear the case and it stayed the district judge’s order until it rules.

A federal court ruled Sunday that a law requir­ing people to pay off fees and other costs related to a past felony convic­tion before their voting rights are restored is uncon­sti­tu­tional. The decision makes clear that hundreds of thou­sands of Flor­idi­ans who were barred from voting by the law are in fact eligible to vote.

In 2018, Flor­id­a’s voters passed Amend­ment 4, which auto­mat­ic­ally restored voting rights to people when they complete their sentence. But Flor­ida lawmakers and Gov. Ron DeSantis respon­ded by enact­ing a law to under­mine the ballot meas­ure. An expert report submit­ted to the court showed that the law’s require­ments would prevent at least 770,000 people from voting — and it would hit Black Flor­idi­ans the hard­est.

The League of Women Voters of Flor­ida, the Flor­ida State Confer­ence of the NAACP, the Orange County Branch of the NAACP, and 12 would-be voters filed a lawsuit to chal­lenge the law. The Bren­nan Center is repres­ent­ing the plaintiffs, along with the Amer­ican Civil Liber­ties Union, the NAACP Legal Defense and Educa­tional Fund, the ACLU of Flor­ida, and the law firm Paul, Weiss, and our suit was consol­id­ated with similar cases filed by others.

The court issued a prelim­in­ary injunc­tion last Octo­ber, ruling Flor­ida could not deny voting rights to people who could not afford their fees and court costs. The state appealed, but the 11th Circuit Court of Appeals upheld the decision in Febru­ary. (The state has indic­ated that it will appeal Sunday’s ruling as well.)

On April 27, the case went to trial, which was conduc­ted entirely by video­con­fer­ence due to the coronavirus pandemic. Now, the court’s historic and force­ful opin­ion paves the way for Amend­ment 4 to truly take effect in all its glory before the Novem­ber elec­tions.

The court’s find­ings

Sunday’s decision expands the prelim­in­ary injunc­tion and contains a number of import­ant rulings.

First, the court reit­er­ated that requir­ing people to pay to vote even when they cannot afford what they owe is uncon­sti­tu­tional wealth discrim­in­a­tion. The court found that an “over­whelm­ing major­ity” of the hundreds of thou­sands disen­fran­chised by the law fall into that category.

Despite the incred­ibly high rates of unem­ploy­ment and poverty among return­ing citizens, Flor­ida heaps debt on them. In 2018 alone, Flor­id­a’s crim­inal courts assessed over $250 million, and the state had admit­ted that it does­n’t even expect the vast major­ity of it to be paid anytime soon. By making people pay to vote, DeSantis and the Flor­ida Legis­lature ensured that perman­ent disen­fran­chise­ment would continue for hundreds of thou­sands simply because they are too poor.

Second, the court ruled that the law viol­ates the 24th Amend­ment, which bans the poll taxes that were used to disen­fran­chise African Amer­ic­ans for decades after the Civil War. The court held that court fees meet the defin­i­tion of a “tax” under the amend­ment because they are inten­ded to raise revenue. Indeed, Flor­id­a’s consti­tu­tion actu­ally requires the state’s courts to be financed entirely by charges imposed by the courts.

The court’s hold­ing that the law viol­ates the amend­ment is moment­ous: It is one of the only times a court has struck down a law for viol­at­ing the 24th Amend­ment since it was rati­fied in 1964, and the first time in the context of rights restor­a­tion for people with convic­tions. It also illus­trates just how far out of step Flor­id­a’s system is with our nation’s long­stand­ing values. As the court put it, “taxa­tion without repres­ent­a­tion led a group of patri­ots to throw lots of tea into a harbor when there were barely united colon­ies, let alone a United States.”

Finally, the court addressed the “admin­is­trat­ive train wreck” that the law created. Flor­ida lacks a reli­able system for determ­in­ing how much a person owes. Indeed, Flor­ida hadn’t just put a price tag on voting — it created a system where return­ing citizens could­n’t even tell what the price is. The court made clear that it is uncon­sti­tu­tional to deny someone the right to vote for fail­ure to pay “amounts that are unknown and cannot be determ­ined with dili­gence.”

Our client, Pastor Clif­ford Tyson provides a perfect example of this prob­lem. He has not been able to get a defin­it­ive answer about what he owes even after the local county clerk’s staff — which the court described as “extraordin­ar­ily compet­ent and dili­gent” — stud­ied his records for hours.

And Tyson is not alone. Expert witness Traci Burch found that even if a citizen clears the pleth­ora of bureau­cratic hurdles to getting records, incon­sist­en­cies in the records are rampant across the state.

A return­ing citizen who cannot determ­ine whether they owe money faces the possib­il­ity of prosec­u­tion for a felony if they register and vote and it turns out they are ineligible due to a debt they did not unearth. The court’s order gives them the clar­ity they need to register and vote without fear, even provid­ing a one-page set of stand­ards to guide them.

Anyone with a felony convic­tion (besides murder or a sexual offense) who has completed any period of govern­ment super­vi­sion can vote unless they owe fines or resti­tu­tion that they can ascer­tain, and they can afford. To simplify things, the court also made clear that some people, includ­ing anyone who was appoin­ted a public defender, are presumptively unable to afford what they owe.

Ensur­ing the right to vote, in prin­ciple and prac­tice

The court went further and provided a work­able process for people who are still confused — some­thing the state has utterly failed to do in the year since the law was passed.

The judge prohib­ited the state from using the confus­ing regis­tra­tion form required by the law. The court described the form, which required people with convic­tions to affirm­at­ively disclose that fact in order to register, as “indefens­ible,” and ruled that it viol­ated the National Voter Regis­tra­tion Act.

The court even ques­tioned lawmakers’ inten­tion in requir­ing the new form, saying it is “so obvi­ously defi­cient that its adop­tion can only be described as strange.” The simple form Flor­ida used before the law was passed will make it much easier for people to register without fear.

The judge also wrote that anyone who is still confused about their eligib­il­ity can ask the state for an advis­ory opin­ion about whether they need to pay — and even provided a form for making such a request. In other words, they can ask the state to tell them if they owe any fines and resti­tu­tion, how much they owe, and to give them an answer about whether they qual­ify as unable to afford what they owe. If the state does not give them an answer within 21 days, they are free to register and vote.

In sum, the decision confirms that it is uncon­sti­tu­tional to put a price tag on voting rights restor­a­tion. It also ensures that every eligible voter is free to register and vote without fear.