Matthew Carver
Introduction
The United States is one of the strongest, most well-respected democracies in all of history. The United States is a representative democracy in which every eligible citizen can cast one vote for a candidate who, if elected, would represent them and their interests in government. Most citizens assume that any eligible citizen (over the age of 18) who wants to vote can vote in a U.S. election. However, historically this was never the case in the United States, and even today, the sentiment that anyone over the age of 18 who wants to vote can vote is still wrong. From the founding of the United States to the current day, large portions of the population have been disenfranchised, meaning their right to vote has been stripped away by the government. In early American history, only a certain group of citizens were allowed to vote, those being White, land-owning men. As the years went by, the right to vote was opened to non-land-owning White men as well. It took the Civil War and the passing of the 15th Amendment to finally protect African American men’s right to vote. However, this enfranchisement was very short-lived because, almost immediately after, numerous Southern states passed laws to limit who was allowed to vote in elections, targeting newly enfranchised African Americans. These laws were known as Jim Crow laws or Black Codes. They included laws like poll taxes, literacy tests, and grandfather clauses, which on their face were not discriminatory; but, taking a deeper look at how African American citizens were disproportionately negatively affected by these laws clarifies their underlying objectives (Aviram et al., 2017). These laws remained intact until the passing of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the ratification of the 24th Amendment. These three pieces of legislation helped bring an end to the discrimination and disenfranchisement against African Americans. About 40 years prior, women were finally enfranchised in the United States by the ratification of the 19th Amendment. Although the United States has made great progress regarding enfranchisement, there is still a large group of citizens in the United States unable to vote, those being citizens convicted of a crime.
Modern Day Felony Disenfranchisement
At the end of 2021, almost 5,445,000 million adults were under some sort of correctional supervision, including either probation, incarceration, or parole in the United States (Carson & Kluckow, 2023). A study from 2020 estimated about “5.17 million people [were] disenfranchised due to a felony conviction” (Uggen et al., 2020, p. 4). Although the number of disenfranchised citizens has decreased over the last 20 years, that number peaked in 2016 with over 6 million people disenfranchised due to a felony conviction. This is still a substantially large number of people, constituting over 1.5 percent of the whole U.S. population or over 2 percent of the voting-age population in the U.S., that have had their right to vote stripped away (Uggen et al., 2020). Breaking this number down further shows the deeper impact of disenfranchisement on minority communities in America, specifically African Americans. In the United States, African Americans face disproportionately higher rates of incarceration and conviction compared to other racial groups, which results in higher rates of disenfranchisement among the African American community. A study from 2018 found that African Americans make up 36 percent of the total disenfranchised population and that they are “disenfranchised at four times the rate of non-black citizens” (Mauer, 2018, p. 17). Although the African American community is by far the most disproportionately affected by disenfranchisement laws compared to all other racial groups, there has been a steady increase in the incarceration rate of Latinos, and the impact of disenfranchisement laws is likely to expand in that minority group specifically and minority communities in general (Aviram et al., 2017). Disenfranchising people is solely a state’s decision, with each state government having the discretion or ability to disenfranchise a person at any level of correctional supervision, even if they have completed all terms of their sentence and are no longer supervised by the state. This decision being up to the individual states has created a lot of variability across the United States, with states disenfranchising people at different levels of correctional supervision.
As of 2020, only two states (Maine and Vermont) have no restrictions, meaning any eligible citizen can vote regardless of their correctional supervision status. About 17 states restrict the right to vote from people currently incarcerated and another three states disenfranchise people currently incarcerated or on parole (Uggen et al., 2020). Another 17 states disenfranchise any person who’s incarcerated or on probation or parole. The last 11 states not only disenfranchise people who are currently under correctional supervision (probation, parole, or incarceration) but also disenfranchise some or all people with certain felony convictions after their sentence is complete (no longer under any form of correctional supervision) (Uggen et al., 2020). Many of the states that disenfranchise individuals post-sentence require the individual to completely pay all their court-ordered obligations, including restitution, fines, and court fees. This requirement for full payment of any court-ordered obligations is at the center of the debate about Florida Senate Bill 7066 (SB 7066). Florida has disenfranchised the most people out of any other state, with 1.1 million people being banned from voting, out of that an estimated 900,000 people have finished their sentences but have simply not fully paid their court-ordered obligations (Uggen et al., 2020). The passing of Florida SB 7066 has created a pay-to-vote system in Florida, in which Floridians are stripped of their right to vote because they have not fully paid back their court-ordered obligations, even though they have completed all correctional supervision. This system punishes indigent Floridians who do not have the means to pay their obligations or are working to pay back their obligations, but it would take several years and in some cases decades. Florida’s current pay-to-vote system heavily resembles a poll tax in which a citizen’s right to vote is contingent on the full payment of a monetary cost, something the 24th Amendment specifically prohibits, meaning this system is unconstitutional. To properly understand the legality of Florida’s pay-to-vote system, the legality of felony disenfranchisement more broadly must be explored.
Richardson v. Ramirez
Felony disenfranchisement in the United States was made constitutional by the landmark Supreme Court, Richardson v. Ramirez (1974). This case involved three individuals who were all convicted of felonies and had fully completed their correctional supervision. These three individuals all tried to register for an upcoming California election but were all denied due to their felony convictions. They proceeded to sue the state of California, stating that the California law that disenfranchises ex-felons violated the Equal Protection Clause in the 14th Amendment of the United States Constitution (Richardson v. Ramirez, 1974). The case was first heard by the California Supreme Court, in which they ruled unanimously that the law was unconstitutional, citing how it was unconstitutional to disenfranchise a citizen who was finished with all their correctional supervision (Hinchcliff, 2011). The case was then appealed to the United State Supreme Court, where in a six to three ruling, the Supreme Court ruled that the California law was constitutional. Justice Rehnquist wrote the majority’s opinion, where he relied on a few points to justify the ruling including historical analysis, contemporary laws, and the 14th Amendment, specifically sections one and two. In reference to Section 1 of the 14th Amendment, which contains the Equal Protection Clause, Justice Rehnquist argued that this section “could not have been meant to bar outright a form of disenfranchisement that was expressly exempted from the less drastic sanction of reduced representation that § 2 imposed for other forms of disenfranchisement” (Richardson v. Ramirez, 1974, para. 55). Justice Rehnquist highlights how Section 2 of the 14th Amendment allows for the disenfranchisement of citizens who have participated in rebellion or other crimes, so interpreting Section 1 of the 14th Amendment to completely ban a form of disenfranchisement that the next section protects would not make sense. Justice Rehnquist also references the specific wording of the Penalty Clause located in Section 2 of the 14th Amendment, specifically the phrase “except for participation in rebellion, or other crime” (U.S. Const. amend. XIV. § 2). Justice Rehnquist argues that this phrase was enough to protect felony disenfranchisement laws, also noting that how these words became a part of the 14th Amendment is less important than what the words themselves mean and represent (Richardson v. Ramirez, 1974).
Justice Marshall authored the dissent, where he argued that felony disenfranchisement laws were unconstitutional because they violated the Equal Protection Clause of the 14th Amendment. Justice Marshall began the dissent by highlighting how the majority’s opinion was based on faulty historical analysis because the Penalty Clause of Section 2 was only included in the 14th Amendment to maintain Republican control of Congress (Richardson v. Ramirez, 1974). Due to this fact, Section 2 should not then be interpreted in such a way that it limits the other sections of the 14th Amendment, specifically the Equal Protection Clause. Justice Marshall also argues that felony disenfranchisement is no different from any other law that restricts the political process, meaning strict scrutiny would apply to this. As well, it is not protected from the court’s ever evolving standards for what is and is not protected by the Equal Protection Clause (Richardson v. Ramirez, 1974).
Potential Challenge to Richardson v. Ramirez
Although Richardson v. Ramirez was decided in 1974, it is still a long-standing precedent today (2023), with many cases being put forward to challenge this precedent, but time and time again, the Supreme Court has maintained the precedent set by Richardson v. Ramirez. However, author Abigail Hinchcliff offers a new and different strategy to try to dismantle the precedent set by Richardson v. Ramirez, which allows for felony disenfranchisement laws to exist in the United States. The new challenge to the precedent involves utilizing the common interpretations of similar clauses in the Constitution, using those interpretations on the Penalty Clause. These similar clauses include Section 2 of Article IV, the Grand Jury Clause in the Fifth Amendment, and the Impeachment Clause found in Section 4 of Article II (Hinchcliff, 2011). Although these three clauses are different from the Penalty Clause, they all have a specific pattern of how they are interpreted, which can be appropriately utilized for the Penalty Clause. This specific pattern of interpretation involves looking at the other words located in front of and behind the reference to other crimes in the sentence, all of which the clauses contain. The Impeachment Clause found in Article II, Section 4 specifically states “Treason, Bribery, or other high Crimes and Misdemeanors” (U.S Const. art. II. § 4). Other high crimes are often interpreted as crimes that are like or of the same magnitude as treason and bribery, which were listed before it. It is interpreted that way because treason, bribery, and other high crimes are grouped with misdemeanors being stated right after disconnecting it from the grouping of the first three. This means other high crimes must relate to treason and bribery due to how they are grouped in the sentence, whereas in the Extradition Clause found in Article IV, Section 2, other crimes are preceded by treason and felony (Hinchcliff, 2011; U.S. Const. art. IV. § 2). Other crimes in this clause are often interpreted as any crime less than treason and felony because in the sentence, the crimes are listed in descending order (Hinchcliff, 2011). The last similar clause is the 5th Amendment’s Grand Jury Clause, which states “no person shall be held to answer for a capital, or otherwise infamous crime” (U.S. Const. amend. V.). Infamous crime is often interpreted as any crime that carries an infamous punishment because the preceding word before that phrase is capital, which refers to the crime by its punishment; so, the infamous crime must be interpreted by the punishment it carries (Hinchcliff, 2011).
It would make sense that this pattern of interpretation which has been used on three different clauses located throughout the Constitution, would be utilized to interpret the Penalty Clause. Like the other three clauses, the Penalty Clause contains the phrase other crimes, which is preceded by a specific crime, making it appropriate to utilize this interpretation pattern, to interpret what other crime means. Utilizing this interpretation pattern would mean that other crimes in the Penalty Clause only refer to crimes that are of similar nature to participating in a rebellion which is the preceding crime, like terrorism or espionage (Hinchcliff, 2011). This interpretation limits the scope of the Penalty Clause extremely, therefore restricting felony disenfranchisement to only a few crimes rather than any felony. However, looking at the political reality of the United States currently, coupled with the current ideological bent of the current Supreme Court, this interpretation seems very unlikely to happen soon. Another interpretation, that still follows the interpretation pattern of the other three clauses, may be more politically viable than the first option. This alternative interpretation is that other crimes would be interpreted as any dangerous crime because the preceding crime (participating in rebellion) can be viewed as an example of a dangerous crime (Hinchcliff, 2011). This would still limit the scope of the Penalty Clause and felony disenfranchisement, but it would only disenfranchise citizens convicted of dangerous felonies, not non-violent felonies. This option is seen as more politically viable than the first option because instead of limiting the scope of the Penalty Clause so that it only covers a small category of crimes that are quite rare, it would instead be limited to dangerous crimes, which does constitute a large portion of crimes committed in America. This option can be seen in a way that supporters and proponents of felony disenfranchisement laws could find some common ground. Supporters of felony disenfranchisement laws would still see that although the scope is more limited, offenders of dangerous crimes would still not have their right to vote. Those opposed to felony disenfranchisement laws may argue this interpretation does not go far enough, though it is still a step in the right direction and would mean hundreds of thousands of Americans who have committed non-violent felonies would have their votes restored.
Florida’s “Pay to Vote” System
The precedent set by Richardson v. Ramirez in 1974 has impacted millions of citizens throughout the United States in every state. But one state that has impacted the most citizens is Florida. As previously stated, Florida has disenfranchised the most felons in the entire country. Citizens, activist groups, and some state politicians have tried to change this, but their efforts have been obstructed by Richardson v. Ramirez, the courts, and political factions.
Studies conducted a generation following Richardson v. Ramirez revealed that national public opinion slightly favored restoring voting rights to felons who have completed their supervisory period. One study found that almost 82 percent of Americans agree that a person’s right to vote should be returned to them at some point in their criminal supervision, but the exact point a person’s right to vote should be returned differs (Pinaire et al., 2003). When asked whether a person should return to society with full civil rights and liberties after their supervision is over, study participants were evenly split, with about half in agreement that felons should return to society with the same civil rights and liberties they had before their criminal supervision while the other half disagreed (Pinaire et al., 2003). Manza, Brooks, and Uggen (2004) also examined public opinion on felony disenfranchisement laws but focused more on the specific crimes a person committed and, as a result, disenfranchised for and the type of supervision they were serving. Instead of the overall public opinion on disenfranchisement laws, the previous study examined. This study split the participants into two groups: Group 1 was asked questions about their feelings on disenfranchisement policies about people under a specific supervision level, and Group 2 was asked about their feelings on felony disenfranchisement policies about ex-felons who committed a certain type of crime (Manza et al., 2004). Group 1 showed high support for allowing citizens currently on probation or parole to vote, both over 60 percent in support. However, support sharply dropped to a little over 30 percent when the participants were asked about citizens currently incarcerated (Manza et al., 2004). Like the previous study, this data supports many of the current disenfranchisement laws in the United States, with many states allowing citizens to vote during their supervision but most not allowing citizens to vote if they are currently incarcerated. Group 2 showed very positive support for any ex-felons regardless of the type of crime to be allowed to vote. Specifically, when the type of crime was not specified and it simply asked about ex-felons, almost 80 percent of the participants supported them being allowed to vote (Manza et al., 2004). When the type of crime was specified support for them went down, but all still had above 50 percent support. The lowest supported type of crime is sex crimes, with around 52 percent support (Manza et al., 2004). This data shows that the vast majority of people support allowing ex-felons to vote if they have finished their supervision, but this support does go down depending on the type of crime committed; however, support remains above 50 percent regardless of the type of crime.
Based on the public opinion data from the two studies, it would fit the most with public opinion that a state would disenfranchise an individual at some point during their supervision (mainly during incarceration) and then return that right once they are released on parole. Public opinion is directly contradicted by states that have lifetime felony disenfranchisement laws in places like Florida.
To reduce the number of Floridians disenfranchised in the state, an activist and interest group, known as Floridians for a Fair Democracy, raised money and support for an amendment to Florida’s Constitution, relating to the state’s felony disenfranchisement laws. The crucial parts of the amendment read as follows:
“(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” (Sawyer, 2020, p. 209).
This amendment would have automatically restored the right to vote of any Floridian convicted of a felony, upon the completion of their full supervision (including parole and probation), with the notable exception of citizens convicted of murder or a felony sexual offense. This citizen-initiated constitutional amendment appeared on the ballot, during the November 6, 2018, midterm election in Florida. To be passed, this constitutional amendment needed a supermajority of 60 percent in support, which was obtained with almost 65 percent of citizens voting “yes” in support of the amendment (Sawyer, 2020). Immediately after the amendment was passed, large groups of formerly incarcerated citizens went to register to vote, and the first three months after the passing saw almost 100 times the normal rate of formerly incarcerated citizens registering to vote than normal (Croley, 2021). However, the Florida legislature took issue with this amendment, citing the vague language used in the amendment. Specifically, how the completion of all terms of the sentence was not defined. To address this, the Florida legislature passed Florida SB 7066 into law and was signed by the current governor, Ron DeSantis, becoming effective in June of 2019. SB 7066 provided a long list of what it meant to fully complete all terms of a sentence, most notably including the full payment of all restitution to the victim and full payment of all ordered court fees and fines (Fla. Stat. § 98.0751, 2019). On its face, all SB 7066 did was define what it meant to fully complete a citizen’s sentence; however, the way the Florida legislature defined it had a very large effect on the number of citizens who got their right to vote restored. Out of the over one million Floridians disenfranchised in the state, close to 750,000 of them have outstanding court-ordered financial obligations like fines, fees, or restitution to still pay. With somewhere between 70 and 80 percent of those 750,000 being indigent and either not able to pay their obligations or are only able to pay very small amounts each month (Croley, 2021). On top of that, Florida does not maintain a central database that stores and tracks what a citizen owes or the remaining balance. This then makes it near impossible for a citizen to determine how much money in total they owe or how much more money they still owe. If that citizen then comes to the wrong conclusion that they have fully paid off their obligations, and tries to register to vote in Florida, that person can be subject to punishment (Croley, 2021). This uncertainty of potential punishments often keeps citizens who are eligible to vote from voting because they do not want the punishments that come along with registering to vote when they are barred from doing so.
SB 7066 Path Through the Court System
The same month that SB 7066 was passed, a group of Floridians challenged the Senate Bill, arguing that they and others would have been eligible to have their voting rights restored, and are no longer eligible because they are indigent and cannot pay back their financial obligations (Gregoire, 2022). The United States District Court first heard the case for the Northern District of Florida, where they issued a preliminary injunction, which allowed any of the plaintiffs to register to vote if they could prove that before SB 7066 was passed, they would have been able to vote and now cannot vote due to unpaid financial obligations caused by indigency (Gregoire, 2022). The case was later appealed to the United States Court of Appeals for the Eleventh Circuit, which affirmed the District Court’s injunction. Citing the unconstitutionality of conditioning a person’s right to vote on payment of monetary costs when in reality that person is unable to pay (Jones v. DeSantis, 2020). A few months later, the same District Court that ordered the injunction held a trial on the constitutionality of the law. The trial resulted in the District Court striking down the law, arguing that this law violated the 24th Amendment and the Equal Protection Clause because the law conditioned a person’s right to vote on the payment of fees and costs which is unconstitutional. The District Court did caveat the decision by allowing a person’s right to vote to be conditioned on the full payment of fines and restitution, just not fees and costs (Gregoire, 2022). However, a few months after the District Court’s ruling, the Eleventh Circuit Appeals Court ordered a hearing en banc, which is a hearing where all the judges a part of the Eleventh Circuit Appeals Court hear the arguments in the case and make a ruling. The District Court also ordered a “stayed” on the permanent injunction order by the District Court to wait for appeal (Gregoire, 2022).
Before the Eleventh Circuit Appeals Court could make its ruling, the case was appealed to the United States Supreme Court, asking the court to vacate the stay placed by the Eleventh Circuit Appeals Court. The Supreme Court ultimately denied the plaintiff’s application to vacate the stay, allowing for the stay on the permanent injunction to stay in place (Raysor v. DeSantis, 2020). Justice Sotomayor authored the dissent, which was joined by Justices Ginsburg and Kagan, where she highlighted the mistakes the court was making by not vacating the stay. This ruling was very time sensitive since Florida’s deadline to register to vote was only a few days away, and if the stay was not vacated and the Eleventh Circuit Appeals Court ruled in favor of the permanent injunction on SB 7066, ex-felons originally eligible under the original amendment would not be able to vote in the upcoming presidential election. The dissent made several arguments as to why the stay on the permanent injunction placed by the Eleventh Circuit Appeals Court should be vacated. Including how this case would most likely be reviewed by the United States Supreme Court, following any ruling by the Eleventh Circuit Appeals Court (Raysor v. DeSantis, 2020). Another line of argument made by Justice Sotomayor was that the rights of the parties, in this case, were going to be seriously harmed by the stay. This is because if the stay was to be kept in place, the plaintiffs of the case and millions of other ex-felons in Florida would not be able to register to vote in time for the upcoming presidential election (Raysor v. DeSantis, 2020). The final point raised by the dissent was how the Eleventh Circuit Appeals Court was very wrong in how they applied the accepted standards when deciding whether to place a stay on the permanent injunction issued by the District Court. The dissent also noted the clear flip-flop of opinion by the Eleventh Circuit Appeals Court, where at first, they affirmed the District Court ruling, and then disagreed with the court after their trial, which could have confused ex-felons wondering if they are eligible to vote (Raysor v. DeSantis, 2020). Finally, the dissent also noted the vast amount of evidence and facts presented during the District Court’s trial on this law, highlighting the undisputed fact that most of the ex-felons could not pay back what they owe due to indigency and how slow and unreliable the Florida government was at informing ex-felons how much they owe (Raysor v. DeSantis, 2020). A few months later after the Supreme Court ruled not to vacate the stay on the permanent injunction, the Eleventh Circuit Appeals Court overturned the District Court’s ruling after its hearing en banc. The Eleventh Circuit Appeals Court ruled that SB 7066 did not violate the 24th Amendment or the Equal Protection Clause of the 14th Amendment (Sukhatme et al., 2023).
The pay-to-vote system established by SB 7066 in Florida punishes indigent ex-felons who simply cannot pay back their court-ordered obligations, or it would take them an exceedingly long time to fully pay it back. The pay-to-vote system in Florida requires an ex-felon to completely pay back the entirety of their court-ordered financial obligations, having it so their right to vote hinges on a monetary cost, something the Supreme Court and the Constitution view as unconstitutionally. This system disproportionately affects indigent ex-felons, which make up the majority of those who have not paid back their court-ordered financial obligations and who are affected by SB 7066, a fact that the District Court found in its trial and was echoed by Justice Sotomayor in the dissent as well (Raysor v. DeSantis, 2020). Many of these ex-felons make very little money both right after being released from incarceration, with the average monthly income of these citizens being less than $1,600 a month, and after their supervision is finished, many ex-felons face trouble getting good employment due to their felony conviction (Croley, 2021). On top of the very low monthly income, the Florida Department of Correction found that on average, individuals on probation, parole, and community service owe over $8,000 in restitution alone to their victims. This figure did not even include the added cost of fines and fees (Croley, 2021). Fees and court costs are placed onto every guilty defendant throughout Florida (and many other states as well). They are often very standardized by the classification of the crime and the number. By obligating guilty defendants to pay fees and court costs, the monetary burden of the court-related processes and functions are shifted away from the taxpayers and onto the guilty defendant. Fees and court costs are often imposed regardless of the classification of the crime or the number of crimes, whereas fines are often imposed as a singular or additional punishment. Fines often vary in the amount being heavily based on the crime, aggravating factors, mitigating factors, and mandatory minimums imposed by the state. It was found that in Florida, an individual convicted of a felony was on average ordered by the court to pay a little over $800 in fees and fines, whereas for an individual convicted of multiple felonies, that average increased by almost $300 (Gregoire, 2022). This means that an individual convicted of one felony could be ordered to pay around $8,800 in fees, fines, and restitution, being made to start payments a month or two after they are released from incarceration. This may not seem like a lot to some, but for those whose monthly income tends to average around $1,600 right after release, this is a very challenging task. Even after their supervision is finished and has been out in the world for a while, ex-felons still face many hardships like finding a good paying job because their felony conviction limits them, still making it challenging for them to pay back their court order financial obligations. Often, if an individual misses’ payments if they are on a payment plan or if they have not made any payments in general, several punishments could be implemented against that individual, including more fines and fees, further putting them in debt.
Constitutional Problems with SB 7066
As previously stated, during its trial, the District Court highlighted the numerous constitutional problems associated with SB 7066 and the pay-to-vote system it created in Florida. These constitutional problems were also echoed by the dissent in the Supreme Court’s decision not to vacate the stay on the permanent injunction. The Eleventh Circuit Appeals Court echoed these same problems initially as well when the court first affirmed the District Court’s initial injunction, but they did later change their opinion during their hearing en banc. These constitutional problems primarily revolved around the 24th Amendment and the Equal Protection Clause of the 14th Amendment. The 24th Amendment prohibits the use of any sort of poll tax in an election. Although court costs and fees are not technically taxes, they heavily resemble taxes in three ways, which would make it unconstitutional for Florida to withhold an ex-felon’s right to vote due to them being unpaid. One way these fees and court costs resembled taxes was the relative monetary amount of the fee and court cost ordered onto the guilty defendant. The fees and court costs tended to be relatively small in monetary amount compared to the larger monetary amounts that are imposed with restitution (even this relatively small amount is still a lot for indigent defendants). This size difference between the court costs, fees, and restitution shows that the court cost and fees are put into place for tax reasons rather than as the penalty or punishment reasons restitution is put into place for (Gregoire, 2022). Another way that court costs and fees resemble taxes is the general uniformity between them. Every defendant convicted of a crime is ordered to pay court costs and fees which are not based on the type of crime, or the number of crimes committed. Taxes are generally uniform among everyone and are often not dependent on any other circumstances (Gregoire, 2022). The final way that the court costs and fees resemble taxes, is through the method of collection. Although the collection of these court costs and fees are different among all the counties in Florida, there are some similarities among all counties. Those being that the agencies only deal with collecting the fees and do not punish legal violations (Gregoire, 2022). In combination, with the three factors of the size, uniformity, and collection of the court costs and fees, they are more like a form of tax instead of a fee. Meaning, if someone’s right to vote is held contingent on the full payment of these court costs and fees, their 24th Amendment’s protection against poll tax would be violated.
Though the Equal Protection Clause of the 14th Amendment guarantees a person equal protection and treatment under the law, indigent ex-felons are punished for not being able to pay all their court-ordered financial obligations under Florida’s SB 7066. Since they cannot completely pay back their court-ordered financial obligations, their right to vote does not get returned to them, while ex-felons who were financially capable of paying back all their financial obligations had their right to vote returned to them. This clearly shows that ex-felons who are indigent and are not able to pay back their court-ordered financial obligations are treated differently than ex-felons who are not indigent. This point was highlighted by the District Court’s trial and the dissenting Supreme Court opinion authored by Justice Sotomayor. This unequal treatment of indigent ex-felons and regular ex-felons shows a clear violation of the Equal Protection Clause of the 14th Amendment.
Conclusion
The passing of SB 7066 has created a pay-to-vote system in Florida, in which Floridians are stripped of their right to vote because they have not fully paid back their court-ordered obligations, even though they have completed all correctional supervision. This pay-to-vote system established by SB 7066 heavily resembles a poll tax in which a citizen’s right to vote is contingent on the full payment of a monetary cost, something the 24th Amendment specifically prohibits, meaning this system is unconstitutional. The current constitutionality of SB 7066 primarily hinges on the 1974 U.S. Supreme Court case Richardson v. Ramirez. This case set the longstanding precedent that allows felony disenfranchisement to be legal in the United States. Throughout the years, there have been many challenges to this case, but all have failed, this coupled with mass incarceration and the rise of legal financial obligations have created a rise in the number of people disenfranchised and limited the avenues for change to happen (Sukhatme et al., 2023). In recent years, a new potential way to limit the scope of Richardson v. Ramirez has been developed, which involves utilizing clauses with similar wording to the Penalty Clause in the U.S. Constitution. Utilizing how these similar clauses are generally interpreted, then using that interpretation pattern to interpret the Penalty Clause. In the case of the Florida pay-to-vote system, indigent ex-felons are punished for not being able to fully pay back their court-order financial obligations.
Felony disenfranchisement and the Florida pay-to-vote system are entirely unconstitutional and against the foundation of America’s democracy. It is well documented that felony disenfranchisement disproportionately affects minority and lower-class communities. “Nationally Black Americans constitute 2.2 million of the disenfranchised, banned from voting at four times the rate of all other racial groups combined” (Gregoire, 2022, p. 225). Not only are African Americans disproportionately affected by disenfranchisement laws on a national level, but the effect is also even worse when looking at specific states. For example, in Florida, during a three-month period after the passing of the initial passing of the constitutional amendment by the people of Florida, “44 percent of formerly incarcerated voter registrants identified themselves as Black, while only 13 percent of Florida’s overall voter population are black” (Gregoire, 2022, p. 228). This means that almost half of the disenfranchised population in Florida is African American, which is a staggering number for a population that already has a very low percentage of the total voter population. Those percentages do not even consider other minority communities in Florida, including the large Hispanic/ Latino communities which are also disproportionately affected by felony disenfranchisement laws. If given back their right to vote that was stripped from them because of a felony conviction, current criminal supervision, or unpaid court-ordered financial obligations, these communities would have a big impact on elections in Florida at all levels. For example, the presidential election in 2000, between Geroge W. Bush and Al Gore was only decided by less than 1,000 votes. During that time hundreds of thousands if not millions of Floridians were not allowed to vote because of felony disenfranchisement. If this large group was allowed to vote, that could have easily changed the outcome, potentially leading to Gore winning the state and consequently the presidency or just increasing Bush’s lead. Either way, the outcome would have changed if the ex-felons who were currently disenfranchised were given their right to vote back. However, popular sentiment is often passed around that these ex-felons, if given their right to vote back, would only vote for radical changes to the criminal justice system, creating what some say is a pro-crime voting bloc. This sentiment has no empirical data supporting it and is just simply political talking points for a certain political side. However, there is empirical data showing that if a person is informed that they do not have any outstanding court-ordered financial obligations, voter turnout increases by close to 16 percent. Paying a person’s court-ordered financial obligations and informing them about it, increased voter turnout even more, by almost ten percentage points more than just telling them they have no financial obligations. (Sukhatme et al., 2023).
Although felony disenfranchisement clearly goes against the foundation of America’s democracy and disproportionately affects minority communities and should be for the most part labeled entirely unconstitutional, most Americans are in the middle about the extent disenfranchisement laws in the United States should go. Public opinion closely matches many of the disenfranchisement laws in the United States, with most states disenfranchising an individual during their supervision term but returning their right to vote at a certain point after a specific form of supervision is finished. This data does, however, go against some state’s disenfranchisement policies, such as states with full disenfranchisement laws that completely strip an individual’s right to vote even after they have fully finished their supervision, like Florida, and states that do not have any disenfranchisement laws at all, like Maine.
The likelihood of any big felony disenfranchisement policy changes occurring in Florida right now is very low because the state is held tightly by the Republican party, which overwhelmingly supports felony disenfranchisement. Florida still has the same governor (Ron DeSantis) who led the charge to have SB 7066 passed, which limited the scope of the amendment that was voted on and passed by the citizens of Florida. Looking more nationally, the likelihood of any big changes occurring is low as well due to the conservative majority in the Supreme Court. This means that for real change to occur, Congress needs to step up and pass a bill ending felony disenfranchisement.
References
Aviram, H., Bragg, A., & Lewis, C. (2017). Felon Disenfranchisement. Annual Review of Law and Social Science, 13(1), 295-311. https://doi.org/10.1146/annurev-lawsocsci-110316-113558.
Carson, A., & Kluckow, R. (2023). Correctional Populations in the United States, 2021 – Statistical Tables, Bureau of Justice Statistics, 1-23. https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cpus21stB.pdf.
Croley, C. (2021). Punishment Only for the Poor: The Unconstitutionality of Pay-to-Vote Disenfranchisement Laws. Emory Law Journal, 71(2), 371-416.
Gregoire, A. (2022). Florida Court Fees Cost the Vote. American University Law Review Forum, 71(6), 215-246.
Hinchcliff, A. M. (2011). The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement. The Yale Law Journal, 121(1), 194-236.
Jones v. DeSantis, 975 F.3d 1016, 1059 (11th Cir. 2020).
Manza, J., Brooks, C., & Uggen, C., (2004). Public attitudes toward felon disenfranchisement in the United States. Public Opinion Quarterly, 68(2), 275-286. https://doi.org/10.1093/poq/nfh015.
Mauer, M. (2018). Confronting Felony Disenfranchisement: Toward a Movement for Full Citizenship. Social Justice, 45(1), 13-25, 131.
Pinaire, B., Heumann, M., & Bilotta, L. (2003). Barred From the Vote: Public Attitudes Toward the Disenfranchisement of Felons. The Fordham Urban Law Journal, 30(5), 1519-1550.
Raysor v. DeSantis, 591 U.S. ___ (2020).
Restoration of Voting Rights: Termination of Ineligibility Subsequent to a Felony Conviction. Fla. Stat. § 98.0751 (2019). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0098/Sections/0098.0751.html.
Richardson v. Ramirez, 418 U.S. 24 (1974).
Sawyer, N. (2020). Too Poor to Vote: Felony Disenfranchisement in Florida Violates Bearden. Texas Journal on Civil Liberties & Civil Rights, 25(2), 205-228.
Sukhatme, N. U., Billy, A., & Bagwe, G. (2023). Felony Financial Disenfranchisement. Vanderbilt Law Review, 76(1), 143-216.
Uggen, C., Larson, R., Shannon, S., Pulido-Nava, A., & Scholar, M., (2020). Lock Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction. The Sentencing Project. 1-20. https://www.sentencingproject.org/app/uploads/2022/08/Locked-Out-2020.pdf.
U.S. Const. amend. V.
U.S. Const. amend. XIV. § 2.
U.S Const. art. II. § 4.
U.S Const. art. IV. § 2.