GABRIELLE ENGEL—Florida is no stranger to election controversy. Beyond Bush v. Gore, today there are several pending issues in Florida involving early voting sites, Spanish-language ballots, and the location of Trump’s name on the ballot. However, one issue appears to have been decided, at least for now. Florida Senate Bill 7066, a law intended to limit the voting rights of people with felony convictions who have not repaid their legal financial obligations, is unconstitutional according to the Eleventh Circuit.
In November 2018, more than five million Florida voters approved an amendment to the Florida Constitution, Amendment Four, to restore voting rights for Florida’s convicted felons. Amendment Four establishes several disqualifications, resulting in no voting restoration for persons (1) who are mentally incompetent, (2) convicted of murder, or (3) convicted of a felony sexual offense. Additionally, Amendment Four requires “all terms of sentence including parole or probation” to be completed prior to restoration. At the request of the DeSantis administration, the Florida Supreme Court commented on Amendment Four’s requirement that “all terms of sentence” be fulfilled, interpreting it to mean all financial obligations arising from the conviction must be paid. This led to the approval of Florida Senate Bill 7066, which implemented Amendment Four and expanded upon its language to make necessary the payment of all fines, fees, and restitution imposed as part of the sentence. In response, several indigent plaintiffs asked the United States District Court for the Northern District of Florida for an injunction, arguing that such a requirement violates the Equal Protection Clause of the Fourteenth Amendment. The Eleventh Circuit affirmed the injunction.
The majority begins by recognizing that “[r]egardless of the political trend toward re-enfranchisement, there is nothing unconstitutional about disenfranchising felons––even all felons, even for life.” However, states that pass re-enfranchisement laws must do so within the purview of the U.S. Constitution, especially the Fourteenth Amendment. Because the Supreme Court holds the right to vote as a fundamental right, the Eleventh Circuit applied a heighten scrutiny standard. The court ruled Senate Bill 7066 violated the Equal Protection Clause because individuals “are not punished in proportion to their culpability but to their wealth – equally guilty but wealthier felons are offered access to the ballot while these plaintiffs continue to be disenfranchised, perhaps forever.”
The court rejected a rational basis standard of review, which the State applied to argue Senate Bill 7066 serves to promote “the payment of restitution and other financial obligations, for which ongoing punishment of disenfranchisement may serve as an incentive.” The court conceded that this theory is well-grounded. However, for the indigent plaintiffs who are “genuinely unable to pay despite good faith efforts, collection is obviously futile and further punishment makes collection no more likely.” Further, there are potential adverse effects such as heightened criminal activity to obtain funds. Ultimately, the court found the State’s incentive-collection theory to be fundamentally flawed because it hinged on the fact that “the destitute would only, with the prospect of being able to vote, begin to scratch and claw for every penny, ignoring the far more powerful incentives that already exist for them––like putting food on the table, a roof over their heads, and clothes on their backs.”
Many, including Desmond Meade, president of the Florida Rights Restoration Coalition, are “cautiously optimistic” about the holding. Helen Aguirre Ferré, spokeswoman for Governor DeSantis, tweeted that the governor’s office disagrees with the opinion and plans on appealing en banc. However, Nikki Fried, Florida’s Agriculture Commissioner, urged DeSantis not to pursue an appeal. She argued Florida’s clemency board could instead adopt rules making it easier for felons to restore their voting rights. Fried stated, “[w]e don’t have to wait on litigation or legislation. We can restore voting rights immediately. And we must.” For Myrna Pérez, director of the Voting Rights and Elections program at the Brennan Center for Justice, the opinion tells “the state of Florida what the rest of America already knows. You can’t condition the right to vote on a person’s wealth.”
