Eleventh Circuit: Florida Law Mandating Indigent Voters Pay Fines and Fees Violates Equal Protection Clause

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an extensive opinion in Jones v. Governor of Florida, the Eleventh Circuit found that the Florida legislature's imposition of payment of all fines, fees, and restitution connected with a felony conviction as a necessary precondition for re-enfranchisement violated the Fourteenth Amendment's Equal Protection Clause.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

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.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of 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, including, but not limited to, probation, community control, or parole." 

Recall that in October 2019, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined, providing that persons affected should have the opportunity to prove their inability to pay.

The Eleventh's Circuit per curiam opinion of 78 pages concluded that the statute's requirement of payment of "legal financial obligations" (known as LFO) could not be sustained under heightened scrutiny.  While wealth classifications in equal protection do not generally merit heightened scrutiny, the Eleventh Circuit noted that

But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B. [ v. S.L.J.], 519 U.S. at 123  [1996] (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.

Further,

The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).

For the Eleventh Circuit, disenfranchisement is clearly punishment, and also clearly a "continuing form of punishment." (emphasis in original). The Eleventh Circuit acknowledged that while felon disenfranchisment schemes are generally only subject to rational basis review, here, the long and short of it is that:

 once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.

The court then applied the form heightened scrutiny from Bearden v. Georgia (1983) including its four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” The court rather expeditiously analyzed the individual's interests as great, the state's interests as minor, and noted the lack of realistic alternatives.

Further, the court rejected Florida's argument that the plaintiffs must demonstrate discriminatory intent:

This is a wealth discrimination case. And the Supreme Court has squarely held that [Washington v.] Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).

The Eleventh Circuit opinion concluded that although to the "extent a felon can pay LFOs, he or she must," but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

[image: Florida vote on Amendment 4 via]