Jones v. Governor of Florida, 021920 FED11, 19-14551

Docket Nº:19-14551
Opinion Judge:PER CURIAM
Party Name:KELVIN LEON JONES, BONNIE RAYSOR, et al., Plaintiffs-Appellees, v. GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE, Defendants-Appellants.
Judge Panel:Before ANDERSON and MARCUS, Circuit Judges, and ROTHSTEIN, District Judge.
Case Date:February 19, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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KELVIN LEON JONES, BONNIE RAYSOR, et al., Plaintiffs-Appellees,

v.

GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE, Defendants-Appellants.

No. 19-14551

United States Court of Appeals, Eleventh Circuit

February 19, 2020

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cv-00300-RH-MJF

Before ANDERSON and MARCUS, Circuit Judges, and ROTHSTEIN, [*] District Judge.

PER CURIAM

On November 6, 2018, Florida voters approved Amendment 4, a state constitutional amendment that automatically restored voting rights to ex-felons who had completed all of the terms of their sentences. Contemporary media reports suggested that as many as 1.4 million felons could be eligible for re-enfranchisement under the law. Accounts differed as to whether this figure made Amendment 4 the single largest act of enfranchisement since the Nineteenth Amendment in 1920, the Voting Rights Act in 1965, or the Twenty-Sixth Amendment in 1971. By any measure, Amendment 4's enfranchisement was historic.

Amendment 4 provided that a felon's "voting rights shall be restored upon completion of all terms of sentence including parole or probation." Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, "legal financial obligations" or "LFOs"). The Florida Supreme Court later agreed with the legislature's interpretation of the Amendment-during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.

Following the passage of SB 7066, the seventeen plaintiffs in this case brought suit, challenging the constitutionality of the LFO requirement. Each plaintiff is a felon who has alleged that he or she would be eligible for re-enfranchisement under Amendment 4 but for non-payment of outstanding LFOs. Each plaintiff has also alleged that he or she is indigent and, therefore, genuinely unable to pay those obligations.

The cases were consolidated in the United States District Court for the Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4. From this order the State timely appealed to this Court.

Because the LFO requirement punishes those who cannot pay more harshly than those who can-and does so by continuing to deny them access to the ballot box-Supreme Court precedent leads us to apply heightened scrutiny in asking whether the requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to these plaintiffs. When measured against this standard, we hold that it does and affirm the preliminary injunction entered by the district court.

I. BACKGROUND

Florida has a long history of disenfranchising those who commit serious crimes, a common practice nationwide that dates to the very beginning of the republic. See George Brooks, Comment, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 852-53 (2005) ("The first disenfranchisement laws in America appeared in the 1600s . . . and were present from the earliest times of the Republic."); see also Richardson v. Ramirez, 418 U.S. 24, 48 (1974) (noting that, in 1868, 29 states had constitutional provisions authorizing the disenfranchisement of felons); Johnson v. Governor of Fla., 405 F.3d 1214, 1218 (11th Cir. 2005) (en banc) ("Florida's policy of criminal disenfranchisement has a long history . . . ."). Indeed, Florida's Constitution has authorized the disenfranchisement of felons since before it joined the Union. See Fla. Const. art. VI, § 4 (1838) (empowering the territorial legislature of Florida to "exclude from . . . the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime"). This policy remained consistent as a matter of state constitutional law until Amendment 4 was passed in 2018. See 1845 Fla. Laws ch. 38, art. 2, § 3 (providing that "no person who shall hereafter be convicted of bribery, perjury, or other infamous crime, shall be entitled to the right of suffrage"); Fla. Const. art. VI, § 4(a) (1968) ("No person convicted of a felony . . . shall be qualified to vote . . . .").

The contemporary voters of Florida, however, are not alone in finding the longstanding policy of categorically depriving felons of voting rights increasingly unpalatable. In the past two decades, nearly half of the states have in some way expanded felons' access to the franchise.[1] While once commonplace, as best as we can tell, only one state maintains a policy of disenfranchising all felons permanently absent executive clemency, 2 although nearly every state continues to disenfranchise felons in some way.3

Regardless of the political trend toward re-enfranchisement, there is nothing unconstitutional about disenfranchising felons-even all felons, even for life. See Richardson, 418 U.S. at 56 (holding that the lifelong disenfranchisement of felons does not violate the Equal Protection Clause). In Richardson, the Supreme Court found in § 2 of the Fourteenth Amendment-which decreases the population of a state that is counted for apportionment purposes when it disenfranchises any male citizens over twenty-one "except for participation in rebellion, or other crime," U.S. Const. amend. XIV, § 2 (emphasis added)-an affirmative constitutional sanction for these policies. See Richardson, 418 U.S. at 41-53. There is, indeed, evidence in Florida's history that its policy of disenfranchising felons was consistent with the original understanding of the Fourteenth Amendment. The Readmission Act of Florida, passed by the Reconstruction Congress, prohibited changes to the state constitution that "deprive[d] any citizen or class of citizens of the United States of the right to vote . . . except as a punishment for such crimes as are now felonies at common law." Act of June 25, 1868, ch. 50, 15 Stat. 73, 73 (emphasis added).

Prior to the adoption of Amendment 4, all felons in Florida were presumptively disenfranchised for life. See Fla. Const. art. VI, § 4(a) (1968). It was possible for a felon to regain his or her right to vote, but only by executive clemency, a purely discretionary process. See id. ("No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights or removal of disability."). Those unable to regain the franchise by the grace of the Governor challenged the constitutionality of this process in practice several times since its adoption in 1968, but this Court has consistently rejected those efforts.

Thus, for example, in Johnson the plaintiffs alleged that Florida's rights-restoration process ran afoul of the Fourteenth Amendment's Equal Protection Clause because, though facially neutral, it intentionally discriminated on the basis of race against African-Americans and other voters of color. 405 F.3d at 1217. Sitting en banc, we rejected these claims, determining that the State "enact[ed] the provision [in 1968] without an impermissible motive." Id. at 1224. Similarly, in Hand v. Scott, we reversed a permanent injunction enjoining the State's Executive Clemency Board from enforcing the restoration process, holding that the process did not have "a discriminatory purpose or effect" with respect to race. 888 F.3d 1206, 1207 (11th Cir. 2018) (emphasis in original).

As a general matter, the Florida Constitution may be amended by a referendum in which sixty percent of the voters agree on the text of an amendment proposed by citizen initiative. See Fla. Const. art. XI, § 5(e). On November 6, 2018, Florida's voters wielded this power and adopted an amendment, with 64.55% of the votes in favor, designed to automatically re-enfranchise certain felons. Formally termed the Voting Rights Restoration for Felons Initiative, this amendment has come to be popularly known as "Amendment 4," owing to its numeric position on the ballot. The amended portion of the Florida Constitution now reads in relevant part: (a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

Fla. Const. art. VI, § 4(a)-(b) (amended 2018) (italicized text added by Amendment 4).

In May 2019, the Florida legislature implemented the provisions of Amendment 4 with Senate Bill 7066 ("SB 7066"), which was codified at Fla. Stat. § 98.0751. In relevant part, SB 7066 interpreted the operative phrase- "completion of all terms of sentence"-to mean "any portion of a sentence that is contained in the four corners of the sentencing document," including release from imprisonment; termination of probation, parole, or community control; fulfillment of any additional terms ordered by the court; and payment of all LFOs ordered by the court. Id. § 98.0751(2)(a). LFOs include restitution to victims and "fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision." Id.

SB 7066 further provided that these financial...

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