353 F.3d 1287 (11th Cir. 2003), 02-14469, Johnson v. Governor of State of Fla.

Docket Nº:02-14469
Citation:353 F.3d 1287
Party Name:Johnson v. Governor of State of Fla.
Case Date:December 19, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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353 F.3d 1287 (11th Cir. 2003)

Thomas JOHNSON, Derrick Andre Thomas, et al., in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants, Omali Yeshitela, Plaintiff,


GOVERNOR OF the STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Harris, et al., in their roles as members of the Clemency Board of Florida, Beverly Hill, Alachua County Election Supervisor, et al., Defendants-Appellees.

No. 02-14469.

United States Court of Appeals, Eleventh Circuit

December 19, 2003

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Jessie Allen, Deborah Goldberg, New York City, for Plaintiffs-Appellants.

Charles J. Cooper, David H. Thompson, Hamish Hume, Derek L. Shaffer, Cooper & Kirk, PLLC, Washington, DC, Jeffrey Paul Ehrlich, Miami, FL, Robert C. Buschel, Buschel, Carter, Schwartzrcich & Yates, Michael David Cirullo, Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL, H. Ray Allen, III, Tampa, FL, for Defendants-Appellees.

James J. Benjamin, Jr., Nancy Chung, Akin, Gump, Strauss, Hauer & Feld, LLP, Paul A. Engelmayer, Wilmer, Cutler & Pickering, New York City, John Russell-Cotes Cosgrove, Menlo Park, CA, Charles S. Treat, San Francisco, CA, Mark L, Gross, Clay G. Guthridge, U.S. Dept. of Justice, Washington, DC, Stacey Michelle Schwartz, Akin, Gump, Strauss, Hauer &

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Feld, LLP, Fort Lauderdale, FL, for Amici Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and KRAVITCH, Circuit Judges, and FULLAM [*], District Judge.

BARKETT, Circuit Judge:

On September 21, 2000, eight Florida citizens 1 ("the Plaintiffs") filed this class action lawsuit on behalf of all Florida citizens who have been convicted of a felony and successfully completed all terms of incarceration, probation, or parole, but who are still ineligible to vote under Florida's felon disenfranchisement law. 2 The Florida Constitution provides that "[n]o person convicted of a felony ... shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4 (1968). The Plaintiffs sued members of Florida's Clemency Board in their official capacity 3 ("the Defendants"), alleging that this law violates the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to the United States Constitution and Sections 2 and 10 of the Voting Rights Act of 1965, codified as amended at 42 U.S.C. § 1973 et seq. After excluding certain expert testimony, the district court granted summary judgment to the Defendants on all claims, and the Plaintiffs now appeal. We affirm the district court's grant of summary judgment on the Plaintiffs' poll tax claim, but, because there are disputed issues of fact to be resolved, we reverse and remand for further proceedings on the equal protection and voting rights claims.


We review a grant of summary judgment de novo, applying the same legal standards as the district court. Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224-25 (11th Cir. 2002). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating the argument of the moving party, the district court must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). If the record presents factual issues, or if reasonable minds might disagree about the inferences arising from the facts, then the court should deny summary judgment. Id. On a motion for summary judgment, the district court may not weigh evidence or find facts. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). We review rulings to exclude expert testimony for abuse of discretion. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).

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Observing that Florida is one of only seven states that permanently disenfranchise first-time convicted felons unless they receive clemency, the Plaintiffs allege in their first claim on appeal that (1) the Florida Constitution's provision mandating felon disenfranchisement was adopted in 1868 with the intent to discriminate against African-American voters, (2) the intent of the 1868 framers remains operative despite the provision's reenactment in 1968, and (3) the provision had and continues to have the discriminatory effect intended. As such, the Plaintiffs contend that the provision violates the Equal Protection Clause, which prohibits any State from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

To decide whether a facially neutral law invidiously discriminates on the basis of race in violation of equal protection, an important factor to consider is whether its impact bears more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In this case, the Plaintiffs have presented evidence that Florida's disenfranchisement of felons has a disproportionate impact on African Americans. 4 According to that evidence, Florida currently disenfranchises over 613,000 men and women on account of a prior felony conviction. Doc. 121 at 490. When Florida enacted its most recent constitution in 1968, voting-age African Americans were more than twice as likely as non-African Americans to be barred from the vote on account of a prior felony conviction. See Doc. 163 at Addendum. The disparity is even more pronounced today. Approximately 10.5% of voting-age African Americans in Florida--over 167,000 men and women--are now disenfranchised as ex-felons, compared with 4.4% of the non-African-American population. Doc. 121 at 509. More than one in six adult African-American males in Florida are disenfranchised due to a prior felony conviction. Doc. 121 at 509. Moreover, using arrest rates as a proxy for criminal involvement, the Plaintiffs have offered evidence that between 25 and 36 percent of the racial disproportionality in felony convictions--and therefore disenfranchisement due to felony convictions--cannot be explained by differential involvement in crime by race. Doc. 120 at 20-23. Thus, the Plaintiffs have presented sufficient evidence of racially disproportionate impact both in 1968 and today to support their position on this issue at summary judgment.

However, although relevant, disproportionate impact alone is not sufficient to prove invidious racial discrimination in violation of the Fourteenth Amendment. Davis, 426 U.S. at 242, 96 S.Ct. 2040. To prove that a facially neutral law with racially disproportionate effects violates the Equal Protection Clause, the Plaintiffs must show that racially discriminatory intent was a substantial or motivating factor behind its adoption, although it need not be the only factor. See Arlington Heights, 429 U.S. at 264-65, 97 S.Ct. 555 ("[Washington v. Davis ] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating

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under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one.").

The evidentiary inquiry into discriminatory motive is rarely simple: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266, 97 S.Ct. 555. Although a general history of past discrimination "cannot, in the manner of original sin, condemn governmental action that is not itself unlawful," City of Mobile v. Bolden, 446 U.S. 55, 74, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the particular law's historical background is a source of probative evidence of intent. See Arlington Heights, 429 U.S. at 266-67, 97 S.Ct. 555. "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id. at 267, 97 S.Ct. 555. Moreover, proof of discriminatory intent behind a specific policy in the past creates an inference that the impermissible purpose continues into the present, despite the passage of time and even, in some instances, intervening changes to the policy. See Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (observing that the original enactment of the Alabama Constitution's criminal disenfranchisement provision was motivated by a desire to discriminate against blacks, continues to have that effect, and therefore violates equal protection, despite intervening events that narrowed the scope of the provision). 5

With these principles in mind, we turn to the origins of Florida's current felon disenfranchisement provision. It is true that Florida's earliest constitution, ratified in 1838, empowered the legislature to disenfranchise certain criminal offenders. 6 However, the fact that the 1838

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Florida Constitution granted this power at a time when African Americans could not vote does not foreclose the Plaintiffs' claim of invidious discrimination in violation of the Equal Protection Clause. A law may be infected by discriminatory intent at any stage, including a later reenactment. See McMillan v. Escambia County, 638 F.2d 1239, 1246 n. 14 (5th Cir. 1981). 7 Indeed, the district court found in this case that

Plaintiffs have presented to this Court an abundance of expert testimony about...

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