Breaking: Supreme Court, on Divided Vote, Refuses to Vacate Stay in Florida Felon Reenfranchisement Case, Meaning Potentially Hundreds of Thousands of Former Felons Reenfranchised by Florida Voters Won’t Get to Vote in November

With at least three of the Court’s four liberal Justices dissenting, the Supreme Court refused to intervene in a case involving Florida felon voting rights, with big implications for voting in November.

The procedural path of this case is complex, and laid out well in Justice Sotomayor’s dissent for herself and Justices Kagan and Ginsburg. (Justices don’t always note their dissents in these cases. It is possible that the other liberal on the Court, Justice Breyer, also dissented but did not note it. He might have voted with the majority or he might have been out and not vote on this at all. Or a conservative Justice could have dissented and not noted it, although that seems highly unlikely given the pattern I describe below.)

Speaking very roughly, voters in Florida overwhelmingly and on a bipartisan vote approved a constitutional amendment that restored Florida felon voting rights after the completion of their sentences. (This affects, as I understand it, over 750,000 and potentially up to 1 million people.) The Florida legislature then came back and passed a law saying that reenfranchisement could not happen until these felons had paid all their outstanding fees and fines connected to their service, but Florida does not have a central list of such fees and fines. This meant that ex-felons seeking to register if they thought they had no outstanding fines would be risking committing a new felony if they guessed wrong. The trial court found this a due process violation, and that seems a very strong argument. (The argument that this Florida law also is a poll tax on the indigent seems much more uncertain.)

The court issued an injunction barring Florida from enforcing the law, and an Eleventh Circuit panel expedited consideration of the case for oral argument. Then the entire 11th Circuit took the case en banc and issued a stay of the district court’s order. This meant that Florida could enforce its law until the appeal was resolved. Given the timing of the appeal as set by the en banc court, it likely would be too late for these voters to register to vote in time for November’s elections.

The Supreme Court has now left that 11th Circuit stay order in place, once again siding against voting rights during a pandemic, and this time when the lower court had resolved this voting dispute with plenty of time before the November elections.

This is a consistent pattern at the Supreme Court. Conservatives on the Court have sided against voters now in emergency election-related litigation (on the so-called shadow docket) in every election case this season: Wisconsin, Alabama, Texas, and now Florida. Liberals have dissented in each of these cases (except perhaps Breyer in this one). I’ve argued that this is a very disturbing pattern for November. It also shows that Chief Justice Roberts is no swing voter when it comes to voting rights.

This case is perhaps the most consequential when it comes to election outcomes; Florida is a perennial swing state and the number of voters affected by this ruling is significant. But this case is even more important for what it says about the Court’s failure to protect voting rights in a pandemic. As Justice Sotomayor concluded her dissent:

This Court’s inaction continues a trend of condoning disfranchisement. Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day. See Republican National Committee v. Democratic National Committee, 589 U. S. ___ (2020) (per curiam). Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks. 

[This post has been updated.]

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