In 2018, Florida voters ratified Amendment 4, a state ballot initiative granting the right to vote to most formerly incarcerated people in the state “upon completion of all terms of sentence.” Initially, many thought the amendment would re-enfranchise more citizens than any law passed in at least the last 50 — and possibly the last 100 — years.
But two subsequent developments blunted the potentially revolutionary effect of Amendment 4. First, the Florida legislature enacted a law (“SB 7066”) interpreting Amendment 4 to require payment of all restitution, fines, and fees ordered by the sentencing court in early 2019. Second, Florida governor Ron DeSantis requested that the state’s Supreme Court issue an advisory opinion on whether former felons must pay these legal financial obligations (“LFOs”) to regain ballot access. On January 16, 2020, the Florida Supreme Court then issued an opinion upholding SB 7066’s interpretation of Amendment 4.
In June 2019, Kelvin Jones, a formerly incarcerated felon in Florida, sued Florida’s governor and secretary of state, and the supervisor of elections in his county, under 42 U.S.C. § 1983, alleging the unconstitutionality of SB 7066 both facially and as applied to him. Jones asserted that Florida violated his rights under various federal constitutional provisions, including the Fourteenth Amendment’s Equal Protection Clause, because he was genuinely unable to pay. A federal district court in the Northern District of Florida consolidated Jones’s case with similar ones involving sixteen other plaintiffs. After briefing and an evidentiary hearing, the district court issued a preliminary injunction enjoining the state from enforcing SB 7066 against plaintiffs genuinely unable to pay their LFOs.
The Eleventh Circuit affirmed. In a per curiam opinion, the court first considered what standard of review applied. Lamenting that “[t]he appropriate level of scrutiny is not immediately obvious,” the court surveyed precedents pointing in seemingly opposite directions. The court first noted several Supreme Court decisions suggesting that rational basis scrutiny applied. In San Antonio Independent School District v. Rodriguez, the Supreme Court had held that wealth is not a suspect classification triggering strict scrutiny. Another case, Richardson v. Ramirez, permitted the disenfranchisement of all felons for life. Pointing the other way, the 1996 Supreme Court case M.L.B. v. S.L.J. suggested that wealth classifications are suspect when they restrict access to voting or interfere in the administration of criminal penalties. The court also referenced several Supreme Court decisions that have called the right to vote “fundamental.”
Ultimately, the panel concluded strict scrutiny applied, but expressed “reservations about whether the . . . the LFO requirement would pass even rational basis scrutiny.” The court wrote that Florida’s re-enfranchisement scheme would fail rational basis scrutiny if “those felons genuinely unable to pay . . . are in fact the mine-run of felons affected.” It then concluded that the plaintiffs had not demonstrated that the law was irrational on the “limited record” before it in the case’s preliminary posture, but suggested that “further development of the factual record” might show that most felons could not pay their LFOs, and thus that the law is invalid even when applied to the whole class of felons. Then, applying strict scrutiny, the court held the Florida policy unconstitutional as applied to former felons who have completed their sentences but remain unable to pay their LFOs. The court further held that the district court did not abuse its discretion in issuing its preliminary injunction.
In the short term, the Eleventh Circuit’s decision will impact only a few people in limited ways. But its long-term consequences are potentially momentous.
The preliminary injunction affirmed by the Eleventh Circuit will have limited effect in Florida’s upcoming presidential primary race. The injunction applies only to the seventeen plaintiffs involved in the case, and trial is not scheduled until April, well after the Florida presidential primary on March 17th, 2020. Further, the injunction permits the state to require plaintiffs to submit proof of inability to pay beyond what they offered to the district court. The district court also did not define “inability to pay,” effectively giving the state discretion as to how to comply with its injunction.
On the other hand, the Eleventh Circuit’s dicta immediately jeopardizes not only Florida’s re-enfranchisement scheme, but also those of neighboring states. Both Alabama and Georgia — the only two other states within the Eleventh Circuit’s jurisdiction — also require former felons to repay all LFOs before regaining access to the franchise. The court found it “plausible” that the LFO payment “requirements may be irrational as applied to the class as a whole,” but declined to hold as much absent any fact-finding by the district court. Thus, the path to invalidating re-enfranchisement laws requiring repayment of LFOs remains open under Jones.
Over the longer term, the impact of Jones could prove significant. The Eleventh Circuit is the first court in the country to apply strict scrutiny to — and invalidate as applied to indigent plaintiffs — a felon re-enfranchisement regime requiring payment of all LFOs. The Sixth Circuit and Washington Supreme Court, the only other courts to consider equal protection challenges to similar schemes, applied rational basis scrutiny and upheld the challenged laws. And currently, eight states (including Florida) require repayment of LFOs for felons to regain the franchise, while two more states require completion of all terms of sentence. The current lack of uniformity in federal law, the sheer number of people and states affected by these disjunctive court rulings, and the stark implications for the American political system make the issue of payment conditions for felon re-enfranchisement a leading candidate for future Supreme Court review.