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July 16, 2020

Via 6-3 vote, SCOTUS refuses to vacate Eleventh Circuit stay that prevents certain persons with felony convictions from registering to vote

As reported in this CNBC piece, headlined "Supreme Court leaves in place Florida ‘pay-to-vote’ law aimed at felons," the Court this afternoon left in operation "a Florida law requiring those with felony convictions to pay fines before they may vote, potentially blocking about three-quarters of a million otherwise-eligible voters from the polls."  Here is more of the legal essentials: 

The case concerned an a 2018 ballot initiative in which voters in the state ended the permanent disenfranchisement of felons who had completed “all terms of sentence including parole or probation.”  The legislature defined the phrase the following year to include fines, restitution and other fees. Gov. Ron DeSantis, a Republican, signed the bill in June 2019. 

After civil rights groups challenged the legislature’s move, a federal judge blocked the law from going into effect, but that decision was halted by the 11th U.S. Circuit Court of Appeals, which is continuing to consider the matter.

The American Civil Liberties Union, the Southern Poverty Law Center, and Campaign Legal Center asked the top court to reverse the 11th Circuit’s decision.  The groups argued in court papers that most of the 750,000 potential voters could not afford what they owed, and that many had no way of knowing how much they were required to pay.  In court papers, they urged the justices to block the law so that the August and November elections would not be “undermined by chaos and disenfranchisement.”

Attorneys for DeSantis argued that states were “under no obligation to reenfranchise felons at all.” They argued that “all Floridians will be irreparably harmed” if the court allowed “hundreds of thousands of ineligible voters to take part in the upcoming elections.”

Paul Smithvice president of the Campaign Legal Center, said in a statement on Thursday that the Supreme Court’s order was “deeply disappointing.”

“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”

Technically, all that SCOTUS did today via this order was turn down an application to vacate the stay that the Eleventh Circuit had put in place. This order was via 6-3 vote, with Justice Sotomayor authoring a dissent joined by Justices Ginsburg and Kagan that starts and ends this way:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.  And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial.  I would grant the application to vacate the Eleventh Circuit’s stay....

This Court’s inaction continues a trend of condoning disfranchisement.  Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.  See Republican National Committee v. Democratic National Committee, 589 U.S. ___ (2020) (per curiam).  Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement — a situation that Purcell sought to avoid — the Court balks.

July 16, 2020 at 03:20 PM | Permalink


More evidence of a toothless, seriously disfunctional US Supreme Court, unable to even unblock routes to basic constitutional rights of the individual. Pathetic.

Posted by: peter | Jul 17, 2020 4:25:29 AM

This case shouldn't even be a federal case. It should have been in state courts as to whether the statute is contrary to the state constitutional provision giving ex-felons the vote with the federal poll tax theory as an add-on argument.

Posted by: tmm | Jul 17, 2020 11:15:20 AM

Battling in the state courts would probably be futile. The Florida Supreme Court provided its two cents earlier. See here: https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

Posted by: helicopterdude | Jul 18, 2020 8:51:51 AM

Wasn't aware that Florida Supreme Court had already addressed the validity of the statute in an advisory opinion. I still think that, in theory, that the state constitutional argument is stronger than the federal argument. However, it looks like the sponsors of the amendment left a loophole in how they sold the measure to the voters which the Florida Supreme Court (and the Florida legislature) drove a big Mack truck through. (Not sure if it would have mattered to any of the courts involved given the rise of textualism and the ability to use textualism to read the text the way that you want to read it.) I have serious doubts that either the Eleventh Circuit or the U.S. Supreme Court are going to buy the federal constitutional argument, but I can see the plaintiffs feeling that they have to try that route.

Posted by: tmm | Jul 20, 2020 1:53:10 PM

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