Florida is a “purple” state in which political opinions are highly polarized. Nonetheless, in 2018, voters agreed by a nearly 2-1 margin that ex-felons who have served their time should be permitted to participate in the political process. They approved a referendum (Amendment 4) providing that, with the exception of murderers and sex offenders, ex-felons should be eligible to vote “upon completion of all terms of sentence including parole or probation.” Afraid that ex-felons would disproportionately vote Democratic, the Republican-controlled Florida legislature quickly acted to gut Amendment 4 by enacting a law (Section 0751) deeming “all terms of sentence” to include any unpaid fines, fees, costs, and restitution—known collectively as legal financial obligations (LFOs).
Yet a great many ex-felons are indigent and thus incapable of paying their outstanding LFOs. Even many of those who have the financial means to pay cannot, as a practical matter, have their voting rights restored, because the state and local records rarely make clear exactly how much an ex-felon owes in LFOs and to whom. Accordingly, a federal district judge invalidated the Florida law as unconstitutionally infringing the right to vote.
A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed that ruling, but last week, in Jones v. Governor of Florida, the full (en banc) court reversed. In a split that exactly tracked the party of the President who appointed them, six Republican-appointed judges outvoted four Democratic appointees to reverse the district court and thus uphold Section 0751.
It would take a special kind of naïveté to miss the partisan political dimension of the division between the majority and the dissent. And yet, in this case as in other recent cases, partisan and jurisprudential druthers overlapped. Thus the majority in Jones exhibited the same attitude of “petty sticklerism” that I described in an April column criticizing another ruling in which a majority comprising Republican appointees invoked formalistic and reality-denying reasons to hand the petitioners a victory: the aptly-captioned Supreme Court case of Republican National Committee v. Democratic National Committee.
Three Constitutional Claims
The Jones case involved three constitutional challenges to the Florida statute. I have already alluded to one—that it denies due process. All of the Eleventh Circuit judges acknowledged that Florida was not constitutionally obligated to restore voting rights to ex-felons. After all, Section 2 of the Fourteenth Amendment expressly permits felon disenfranchisement. However, it is well established that where a state does recognize a legal entitlement, it cannot use arbitrary procedures. Thus, the dissenters found (based on expert testimony credited by the district court judge) that the process available for an ex-felon to become eligible to vote is so “rife with irrationality and ineptitude” on the part of the state as to deny due process.
The plaintiffs also challenged the law on equal protection grounds. The majority dismissed the claim because it said that the law has a rational basis—the lowest level of judicial scrutiny. This approach is notoriously toothless, so much so that I only half-jokingly describe it for my students as roll-over-and-play-dead scrutiny.
The Jones majority was not wrong to find that the Florida law, like just about every law, satisfies rational-basis scrutiny. Its mistake was applying that minimal level of scrutiny in the first place. True, as the court recited, wealth is not a so-called suspect classification that triggers more rigorous judicial oversight. However, case law has long insisted that when wealth affects the ability to exercise a fundamental right, courts should demand more than a minimally rational justification. And voting is, for equal protection purposes, just such a fundamental right.
To be sure, conservative jurists tend to be cautious about implementing rights not expressly articulated in the Constitution, even ones like voting that are implicit in the very concept of constitutional self-government and have been recognized in prior precedent. We might, therefore, place responsibility for the Jones ruling on the majority’s skepticism of unenumerated rights. Yet if that explains (albeit without justifying) the majority’s rejection of the due process and equal protection claims, a threshold requirement of support in constitutional text cannot explain the bottom line in Jones, because the plaintiffs also relied on an express constitutional text.
They invoked the Twenty-Fourth Amendment, which provides: “The right of citizens of the United States to vote” in any federal election “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” By conditioning eligibility to vote on the payment of LFOs, the plaintiffs argued, the Florida legislature placed a tax on voting as surely as if it had required ex-felons to make cash payments of $1.50 per year—a poll tax that the Supreme Court found invalid in Harman v. Forssenius in 1965.
Indeed, Florida’s Section 0751 is much more restrictive than the law invalidated in Harman in at least three ways: first, even adjusted for inflation, it imposes a much-higher fee on many ex-felons; second, unlike a fixed poll tax, an ex-felon will have a difficult, indeed often impossible, time ascertaining how much to pay; and third, the state’s process for ex-felons to register imposes long delays. Given these factors, the Twenty-Fourth Amendment claim ought to have been a slam-dunk for the plaintiffs. And yet the Jones majority rejected it for transparently bad reasons.
The Twenty-Fourth Amendment
The Twenty-Fourth Amendment bars poll taxes and other taxes, but, said the Jones majority, the requirement to pay LFOs is not a tax. Why not? The court cited precedents in other contexts—including the Supreme Court’s 2012 decision upholding the Affordable Care Act (ACA)’s so-called individual mandate—for the proposition that “if a government exaction is a penalty, it is not a tax.”
That statement is true where, as in the ACA case, the question is whether the raising of revenue was at least part of the justification for a legal provision such that it falls within the power of Congress “to lay and collect Taxes.” But the penalty/revenue distinction makes no sense in the Twenty-Fourth Amendment context. Whether a poll tax or other tax on voting aims at collecting revenue or at exacting punishment, the Twenty-Fourth Amendment properly condemns it. Indeed, given the history of race discrimination in voting that led to the Twenty-Fourth Amendment’s adoption, laws that aim to deter or punish voting should be especially suspect.
The Jones majority nonetheless rejected the Twenty-Fourth Amendment challenge because, it said, the Florida law doesn’t punish voting; it punishes the underlying criminal act that led to a felony conviction in the first place. Yet that answer is deeply flawed.
Precedents under the Fifteenth and Nineteenth Amendments, which respectively bar race and sex discrimination in voting, make clear that if race or sex is relevant to voting eligibility restrictions, the restrictions are invalid. Likewise, the Jones plaintiffs argued, payment requirements should be invalid under the Twenty-Fourth Amendment.
The Eleventh Circuit majority rejected the comparison based on a wholly trivial distinction in the wording of the Fifteenth and Nineteenth Amendments—which forbid abridging the right to vote “on account of” race and sex—and the Twenty-Fourth—which forbids abridging it “by reason of” failure to pay a poll tax. Yet these terms are synonyms. The Jones majority cited no evidence that the Twenty-Fourth Amendment’s framers, much less the ratifying public, attributed any significance to the wording. Instead, it invoked a treatise co-authored by the late Justice Scalia for the interpretive canon that wording differences should connote differences in meaning, a proposition that seems better suited to Biblical than constitutional exegesis, given Divine omniscience as contrasted with the fallibility of human amenders of the Constitution.
The Eleventh Circuit majority also cited the Supreme Court’s decision in Harman for the proposition that, unlike the Fifteenth and Nineteenth Amendments, but-for causation does not suffice to establish a Twenty-Fourth Amendment violation. Yet Harman invalidated a small poll tax, even though it could be avoided entirely by filing a certificate of six-month residency. Just as the Eleventh Circuit majority exaggerated insubstantial wording differences between the Twenty-Fourth Amendment and the Fifteenth and Nineteenth Amendments, so too it exaggerated the importance of the Supreme Court’s wording choices in Harman to twist it into a precedent to be cited against Twenty-Fourth Amendment plaintiffs.
Ignoring the Obvious
To be sure, there is a certain logic to the majority’s ruling in Jones. After all, Florida did not impose LFOs for the purpose of disenfranchising ex-felons. Before the people of Florida adopted Amendment 4 and the legislature passed Section 0751, there was no doubt that the state could lawfully impose such fines, fees, costs, and restitution obligations. Thus, the Jones majority distinguished the poll tax and residency requirement alternative in the Harman case by explaining that they were “born of a desire to disenfranchise” African American voters.
By contrast, the Jones court wrote: “The reason [the challenged Florida] laws leave some felons disenfranchised—the justification for their continued disenfranchisement—is not their failure to pay a tax. It is instead Florida’s legitimate interest in restoring to the electorate only fully rehabilitated felons who have satisfied the demands of justice.”
With due respect, that’s just wrong. As everyone who has paid even minimal attention knows, the real reason the Florida legislature adopted Section 0751 was to undercut Amendment 4’s efficacy in enfranchising persons who, the Republican majority in the legislature feared, will disproportionately vote for their political rivals. Continued disenfranchisement is a feature, not a bug, of Section 0751’s use of LFOs. If the state of Florida really cared about ensuring that its ex-felons are fully rehabilitated, and if it really believed that paying outstanding LFOs is a key part of such rehabilitation, the state would make a much greater effort to collect LFOs, rather than simply using unpaid LFOs as a pretext for denying ex-felons the right to vote.
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Perhaps the majority opinion in Jones is not the partisan exercise that it appears to be. But if so, that would hardly redeem it. It is hard to say which is more damning: that the judges in the Jones majority made unpersuasive hairsplitting arguments simply in order to help their co-partisans or that they actually believed the reality-denying contentions they made.
