Paul Smith and Mark Gaber: “Florida Voters Ask Supreme Court to Lift Stay”

The following is a guest post from Paul Smith and Mark Gaber of the Campaign Legal Center:

In a one-line decision issued on July 1, the en banc Eleventh Circuit stayed a district court order enjoining Florida’s “pay-to-vote” system for people with prior felony convictions. In so doing, they abruptly changed election rules that appeared settled after the same court declined to re-hear an earlier panel decision, which declared that Florida citizens could not be denied the right to vote based on legal financial obligations – such as court fees and costs – that they are unable to pay.

This move is certain to give rise to “voter confusion and consequent incentive to remain away from the polls” – as the Supreme Court warned in Purcell v. Gonzalez, 549 U.S. 1, 5 (2006). There, the Court cautioned appellate courts against intervening and issuing conflicting orders in election cases in the lead up to Election Day itself. If the Court is serious about the concerns it raised in Purcell – and not just about reflexively denying relief to voting rights plaintiffs in the lead up to elections – it must lift the Eleventh Circuit’s stay and allow the District Court’s order to stand pending the full hearing on appeal.

Prior to 2018, Florida citizens with past felony convictions were permanently disenfranchised. Then, with support from nearly 65% of voters, Florida enacted Amendment 4, which restored the right to vote to most citizens with past convictions (those convicted of murder or a felony sexual offense were excluded) automatically upon completion of their sentence. In 2019, the legislature passed legislation defining “completion of sentence” to include payment of all legal financial obligations (“LFOs”), including all court costs and fees.

Campaign Legal Center (CLC), and other voting rights groups, quickly sued over the pay-to-vote requirement and obtained a preliminary injunction on behalf of the individual plaintiffs last October. The Eleventh Circuit upheld the injunction in February of this year, finding that conditioning rights restoration on payment of LFOs discriminates on the basis of wealth as applied to those who cannot pay, in violation of the Fourteenth Amendment.

After an eight-day trial, U.S. District Judge Robert Hinkle issued a 125-page decision in May, concluding that Florida’s pay-to-vote law unconstitutionally discriminated on the basis of wealth, that the requirement to pay costs and fees conditioned voting on the payment of a tax in violation of the Twenty-Fourth Amendment, and that Florida’s staggering inability to administer its system – including its inability to determine who must pay and how much they must pay – violated due process and rendered the law vague. After denying the state’s request to take the earlier panel decision en banc, the Eleventh Circuit took the unusual step of agreeing to take the case for initial hearing before the full court. At the same time, the en banc Court entered a one-sentence order staying the district court’s decision.

As a result, tens, if not hundreds of thousands of registered voters – including those who registered in reliance on earlier court orders in the case – may now be unable to vote. And, three-quarters of a million Florida citizens’ eligibility to vote hangs in the balance. But, precisely which voters are rendered ineligible due to the stay is anyone’s guess. As the district court found, election officials at the Florida Department of State are unable to identify which registered voters are actually eligible, and which are due to be denied the right to vote under the byzantine pay-to-vote law. Nor can they inform citizens who wish to register if they are ineligible due to outstanding legal financial obligations related to a past felony conviction.

Further, the stay order came after affected Floridians already received vote-by-mail applications and just as ballots were mailed to overseas voters. Local officials and voters have no way to know who is affected by the stay or how, and thus have no way to determine which ballots should be accepted and which rejected on the basis of unpaid court debt. The same process will begin soon for the November election. 

If Florida citizens guess wrong about how much (if anything) they must pay to vote, they may be subject to prosecution for a felony offense – the same process that stripped them of their right to vote in the first place. On the other hand, if otherwise eligible Florida citizens decide they are ineligible because they cannot afford to pay to vote, or because they are unable to determine what, if anything, they owe due to the state’s flawed recordkeeping, they will be denied their most fundamental right. And there will be no way for the Eleventh Circuit or any other court to redress that harm after the fact.

This is exactly the situation the Supreme Court warned against in Purcell. The Eleventh Circuit’s stay order has created voter confusion and increased the incentive for eligible voters to stay away from the polls by issuing an order directly conflicting with and suspending the court order that actually resolved the confusion caused by Florida’s incompetently administered pay-to-vote system. It did all of this just three weeks before the registration deadline for the August primary, with oral argument set to occur the same day as that election.

Filed just over a year ago, the litigation over Florida’s pay-to-vote system has moved at lightning speed, proceeding to trial on the merits in under a year, and with detours to the Eleventh Circuit and the Florida Supreme Court along the way. It is hard to see how plaintiffs could have moved any faster to obtain the relief necessary to vindicate their right to vote. At the same time, the Eleventh Circuit has dawdled, by declining to take the case en banc four months ago, and waiting instead until the eve of Florida’s August primaries, and with scant time to reach any resolution before the November presidential election is in full swing.

If the Supreme Court is serious about preventing the confusion and chaos that are certain to stem from conflicting court orders, and not simply about using the specter of an upcoming election to deny relief to plaintiffs in voting rights cases, then it must lift the Eleventh Circuit’s stay and allow the District Court decision to stand until the full appeal is heard.

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