Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, May 26, 2020

Court Strikes Down Florida Felon Pay-to-Vote Law, but Rejects 19th Amendment Claim of Gender Discrimination

Press Release, In a Victory for Voting Rights, Federal Court Rules that Florida's Pay-to-Vote System is Unconstitutional 

The full opinion is here: Jones v. DeSantis (N.D. Fla. 2020)

I want to think more about the new opinion from a federal district court dismissing women voters claims under the 19th Amendment.  Two issues strike me on an initial read.

1.  The court says there is no reason to treat the 19th differently from the 15th or 14th.  This conclusion results in requiring an intentional state of mind for gender discrimination under the 19th Amendment.  The standard of discriminatory purpose is a requirement of proving gender discrimination under the 14th Amendment, and the court says also for the 15th.  However, reading in the historical context may raise a question here.  SCOTUS explicitly held in Minor v. Happersett (1874) that the 14th Amendment did not apply to women's state voting rights.  Reading the 14th Amendment standards into the 19th, seems to do just this.  There is also some significant history on the 19th A itself that might suggest a different conclusion.

2.  It is troubling the court discounts the gender discrimination claim by focusing on the impact on men.   The court notes that more men than women are felons, so more men generally are impacted by the law.  Rather than comparing the two groups similarly situated -- felons -- and then addressing the discrimination against those women felons.  This focus on men, rather than the women plaintiffs in a case, was also seen recently in the US Women's Soccer pay discrimination case.  It may represent an emerging litigation trend of dismissing, both legally and socially, women's claims of disparate impact.  

Here is the court's 19th Amendment claim analysis:

XII. Gender Discrimination


The McCoy plaintiffs assert the pay-to-vote requirement discriminates against women in violation of the Fourteenth Amendment’s Equal Protection Clause and violates the Nineteenth Amendment, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of sex.”

 

To prevail under the Fourteenth Amendment, the plaintiffs must show intentional gender discrimination—that is, the plaintiffs must show that gender was a motivating factor in the adoption of the pay-to-vote system. This is the same standard that applies to race discrimination, as addressed above.


The plaintiffs assert the Nineteenth Amendment should be read more liberally, but the better view is that the standards are the same. The Nineteenth Amendment was an effort to put women on the same level as men with respect to voting, just as the Fifteenth Amendment was an effort to put African American men on the same level as white men. Indeed, the Nineteenth Amendment copied critical language from the Fifteenth, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” As is settled, a claim under the Fifteenth Amendment requires the same showing of intentional discrimination as the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1187 n.8 (11th Cir. 1999) (stating “vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination”). In sum, there is no reason to read the Nineteenth Amendment differently from the Fifteenth.

 

On the facts, the plaintiffs’ theory is that women with felony convictions, especially those who have served prison sentences, are less likely than men to obtain employment and, when employed at all, are likely to be paid substantially less than men.  The problem is even worse for African American women. This pattern is not limited to felons; it is true in the economy at large.

 

As a result, a woman with LFOs is less likely than a man with the same LFOs to be able to pay them. This means the pay-to-vote requirement is more likely to render a given woman ineligible to vote than an identically situated man.

 

This does not, however, establish intentional discrimination. Instead, this is in effect, an assertion that the pay-to-vote requirement has a disparate impact on women. For gender discrimination, as for race discrimination, see supra Section IX, disparate impact is relevant to, but without more does not establish, intentional discrimination. Here there is nothing more—no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.

 

Moreover, the pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons. As a result, even though the impact on a given woman with LFOs is likely to be greater than the impact on a given man with the same LFOs, the pay-to-vote
requirement overall has a disparate impact on men, not women. Even if disparate impact was sufficient to establish a constitutional violation, the plaintiffs would not prevail on their gender claim.

 

https://lawprofessors.typepad.com/gender_law/2020/05/court-strikes-down-florida-felon-pay-to-vote-law-but-rejects-19th-amendment-claims-of-gender-discrim.html

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