The Eleventh Circuit, sitting en banc, has decided Johnson v. Governor of Florida. The en banc court held that Florida’s felon disenfranchisement law violated neither the Equal Protection Clause of the 14th Amendment nor Section 2 of the Voting Rights Act. One judge dissented on the VRA provision; another judge dissented on both the VRA and the constitutional claim.
This is a very important decision. There is already a split on this issue, most recently between the Ninth and Second Circuits, and I have already predicted that this is an issue that will ultimately have to be resolved by the Supreme Court. I have only had time to skim the opinion, but one of the issues appears to be whether the Supreme Court’s opinion in Tennessee v. Lane makes it easier for the courts to uphold applications to the Voting Rights Act against claims that the VRA as interpreted exceeds congressional power. The majority opinion rejects this reading of Lane. A dissenter adopts it. (I discuss this aspect of Lane as applied to Section 5 of the Voting Rights Act in my forthcoming Ohio State Law Journal article, which should be out any day.)
We haven’t heard the last of this issue, or this case. Thanks to Howard Bashman for the pointer.