By refusing to intercede, U.S. Supreme Court blocks felons from voting in next month’s primaries

U.S. Supreme Court, Dec. 2, 2019. Credit: Robin Bravender

The U.S. Supreme Court has effectively denied thousands — perhaps hundreds of thousands — of Floridians who’ve been convicted of felonies the right to vote in the state’s Aug. 18 primary elections.

The justices did so by refusing to lift an intermediate appellate court’s stay of a court order that would have allowed many felons to vote notwithstanding any outstanding “legal financial obligations,” including fees, fines, and restitution.

The order does not identify the justices who voted not to intervene, but Justice Sonia Sotomayor wrote a dissent for herself and justices Ruth Bader Ginsburg and Elena Kagan.

“This court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor,” Sotomayor wrote.

“And it allows the Court of Appeals for the 11th Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a federal district court had found the state’s pay-to-vote scheme unconstitutional after an 8-day trial.”

U.S. District Judge Robert Hinkle ruled on May 24 that the state law implementing 2018’s Amendment 4 amounted to a “pay-to-vote” scheme because it imposed a financial burden on felons’ voting rights with no regard for their ability to pay — or even find out what if anything they owe.

Sotomayor noted that the state estimates it might take six years to figure out who owes what. She also noted: “Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money.”

A three-judge panel of the 11th Circuit had already endorsed Hinkle’s line of reasoning but the full court voted earlier this month to consider the matter “en banc,” or as a committee of the whole. As Sotomayor noted, that court will hear arguments on the day of the primary.

Among the grounds for overruling the 11th Circuit, she wrote, are that the case is likely to land before the Supreme Court eventually; the rights of the parties “may be seriously and irreparably injured by the stay;” and that “the court of appeals is demonstrably wrong.””

“This court’s inaction continues a trend of condoning disfranchisement,” she wrote.

Florida Democratic Party chairwoman Terrie Rizzo issued a written statement condemning the move.

“Florida Republicans have a shamefully transparent electoral strategy: voter suppression. Floridians overwhelmingly voted to allow returning citizens to vote nearly two years ago, but Gov. [Ron] DeSantis is determined to limit participation in our democracy and punish the poor by fighting for this modern day poll tax.”

Other Democratic and progressive organizations weighed in.

“The Supreme Court’s decision is an unfortunate, but not insurmountable, setback in the ongoing struggle to achieve true democracy in our country,” said Nancy Abudu, deputy legal director for the Southern Poverty Law Center.

“Regardless of the Court’s stance, Florida already has acknowledged its system for administering elections, especially its rights restoration process, is deeply flawed. Our hope is that the over 700,000 people who remain eligible to vote through Florida’s Amendment 4 ballot initiative will not be victims in Florida’s war to strip poor and low-income people of all political power. Along with our clients and partners, we remain dedicated to fighting pay-to-vote schemes and ensuring equal access to the ballot box for all eligible voters,” she said in a written statement.

Democratic Legislative Campaign Committee President Jessica Post also issued a statement:

“We cannot count on the courts to save our democracy — we have to defend it at the ballot box this and every year. A vote for Republicans is a vote for extreme partisan gerrymandering, voter suppression, and an assault on our fundamental rights. Electing more Democrats to state legislatures and offices up and down the ballot is the only choice to defend our democracy.”

Florida is the largest battleground state for President Trump and presumptive Democratic nominee Joe Biden. It has more registered Democrats than Republicans, but electoral margins here tend to be tight. The 2018 U.S. Senate race between Democrat Bill Nelson and Republican Rick Scott was decided by around 10,000 votes out of more than 8 million cast. DeSantis won his own race against Democrat Andrew Gillum by four-tenths of a percentage point.

Of course, there’s no way of knowing whether former felons would vote Democratic or Republican, although legislative Republicans pushed the law through in 2019 over objections by Democrats and Republican DeSantis signed it.

However, the criminal justice system penalizes Black Floridians far out of proportion to their share of the population — specifically, they make up 17 percent of the general population but 47 percent of the prison population. As of 2016, according to the Brennan Center for Justice, more than one in five of Florida’s Black voting-age population was disenfranchised.

The center is among the organizations litigating the case, along side the ACLU, the ACLU of Florida, and the NAACP Legal Defense and Education Fund. The named plaintiffs include affected people, the Florida NAACP, and the League of Women Voters of Florida.

Florida’s constitution first imposed life disenfranchisement upon felons in 1868, three years after the Civil War. The only way to secure restoration of voting rights was by appealing to the Florida Clemency Board, comprising the governor and members of the independently elected state Cabinet.

But that panel has met only once this year, on Jan. 21. It has additional meetings scheduled in September and December.

And the process can be haphazard. A federal judge in 2018 concluded that it forced applicants to “plod through a gauntlet of constitutionally infirm hurdles.”

In his ruling, Hinkle imposed a framework for returning felons to follow in seeking their voting rights. He said that if they are unsure about their status, they can ask the Florida Division of Elections for an advisory opinion. If they don’t get an answer within 21 days, they may register.

The Florida Supreme Court issued an advisory opinion in January supporting the position of DeSantis on legislation implementing Amendment 4, which had been overwhelmingly approved by the voters to restore voting rights to people convicted of felonies. His position is that they first must pay any legal financial obligations.

Note: This story has been updated with comments and background information.