Jones v. Governor of Fla.

Decision Date19 February 2020
Docket NumberNo. 19-14551,19-14551
Citation950 F.3d 795
Parties Kelvin Leon JONES, Bonnie Raysor, et al., Plaintiffs–Appellees, v. GOVERNOR OF FLORIDA, Florida Secretary of State, Defendants–Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael A. Steinberg, Michael A. Steinberg & Associates, Tampa, FL, for Plaintiff-Appellee Kelvin Leon Jones.

Paul March Smith, Molly Danahy, Jonathan Diaz, Mark Gaber, Danielle Marie Lang, Campaign Legal Center, Washington, DC, Chad Wilson Dunn, Brazil & Dunn - Miami Fl, MIAMI, FL, for PlaintiffsAppellees Bonnie Raysor, Diane Sherrill, and Lee Hoffman.

Julie Ebenstein, Rodkangyil Orion Danjuma, Dale E. Ho, Jonathan Topaz, ACLU Foundation, New York, NY, David Giller, Pietro Signoracci, Paul Weiss Rifkind Wharton & Garrison, LLP, New York, NY, Sean Morales-Doyle, Brennan Center for Justice, New York, NY, Janai S. Nelson, Samuel Spital, Leah Aden, John Spencer Cusick, Jennifer A. Holmes, Attorney, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Anton Marino, Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Miami, FL, Jimmy Midyette, ACLU of Florida, Jacksonville, FL, for PlaintiffsAppellees Jeff Gruver, Emory Marquis Mitchell, Betty Riddle, Kristopher Wrench, Keith Ivey, Karen Leicht, Raquel Wright, Steven Phalen, Clifford Tyson, Jermaine Miller, Florida State Conference of NAACP Branches, Orange County Branch of the NAACP, League of Women Voters of Florida, Curtis Bryant, Jesse D Hamilton, and Latoya A. Moreland.

Nancy Gbana Abudu, Caren E. Short, Southern Poverty Law Center, Decatur, GA, for PlaintiffsAppellees Rosemary McCoy, and Sheila Singleton.

Robert Charles Swain, Alachua County Attorney's Office, Gainesvilee, FL, for PlaintiffAppellee Kim A. Barton.

Charles J. Cooper, Peter A. Patterson, Cooper & Kirk, PLLC, Washington, DC, Joseph W. Jacquot, Ashley Moody, Attorney General's Office, Tallahassee, FL, Joshua Pratt, Nicholas Primrose, Executive Office of the Governor, Tallahassee, FL, for DefendantAppellant Governor of Florida.

Charles J. Cooper, Peter A. Patterson, Cooper & Kirk, PLLC, Washington, DC, Ashley E. Davis, Bradley Robert McVay, Florida Department of State, Tallahassee, FL, Mohammad O. Jazil, Gary V. Perko, Attorney, Hopping Green & Sams, PA, Tallahassee, FL, George N. Meros, Jr., Tara R. Price, Holland & Knight, LLP, Tallahassee, FL, Ashley Moody, Attorney General's Office, Tallahassee, FL, for DefendantAppellant Florida Secretary of State.

Mary B. McCord, Georgetown University Law Center, Washington, DC, Naila S. Awan, Demos, New York, NY, Chiraag Bains, Demos, Washington, DC, Summer Denay Brown, Mark Herron, Messer Caparello, PA, Tallahassee, FL, Craig Dennis Feiser, Holland & Knight, LLP, Tallahassee, FL, Oren Rosenthal, Miami-Dade County Attorney's Office, Miami, FL, Nicholas A. Shannin, Shannin Law Firm, PA, Orlando, FL, Robert Charles Swain, Alachua County Attorney's Office, Gainesvilee, FL, Stephen Mark Todd, Hillsborough County Attorney's Office, Tampa, FL, Dante Pasquale Trevisani, Florida Justice Institute, Miami, FL, Michael B. Valdes, Miami-Dade County Attorney's Office, Miami, FL, for Amicus Curiae Cato Institute.

Mary B. McCord, Georgetown University Law Center, Washington, DC, for Amicus Curiae R Street Institute.

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, 94 S.Ct. 2655, 41 L.Ed.2d 551 (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, 94 S.Ct. 2655 (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, 94 S.Ct. 2655. 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...

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