A federal court of appeals on Friday, Sept. 11 issued an opinion that ought to outrage anyone who cares or believes in the right of a people to use their vote to influence their government. That court categorically denied that right to those who, through their own choices, turned against the society that raised them, but after serving their sentence are attempting to re-enter that same society. I am of course talking about Florida’s re-enfranchisement of voting rights for felons not convicted of murder or sexual crimes after they completed their sentence. These people, who lost their right to vote, were permitted by their fellow Floridians to regain their democratic right but were effectively hung out to dry by their own legislature.
For some context, back in 2018, during the midterm elections when everyone was focused on the U.S. House and Senate elections (including a tight Senate race in Florida itself that Republicans flipped), there was a constitutional amendment on Floridians’ ballot. The proposed Amendment 4 stated:
“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”
It sounds rather clear. After you were free from prison and you finished your parole or probation program, you would get your voting rights back. Floridians apparently also thought it was clear because 65% voted “yes” on the amendment.
The Florida legislature was not as pleased and interpreted the phrase “complete all terms of their service” as meaning to include payment of courts, fees and fines. Such an unnecessary interpretation (the amendment is quite clear as written) completely and intentionally subverts the spirit and goal of the amendment and as such is unconstitutional. And I don’t say that out of blind, uninformed outrage. No, I literally mean that the bill the Florida legislature passed is unconstitutional under the 24th Amendment which states:
“The right of citizens of the United States to vote in any [federal election] shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.”
In what sense is the legislature not denying the right to vote to felons who paid their debt to society “by reason of failure to pay any other tax” when it enacts a bill that blatantly does so?
Of course, after the legislation was litigated against, it traveled up the court system, first being affirmed by the Florida Supreme Court, then being overturned in the U.S. District Court, before finally making its way to the U.S. Court of Appeals for the 11th Circuit, who made the most recent ruling.
In a 6-4 decision, the court of appeals rejected the argument made by felons that the law passed by the legislature required them to effectively pay a poll tax in order to vote. It first did so by explaining the phrase “by reason of” in the 24th Amendment “does not establish a but-for causal relationship between the failure to pay a tax and the denial of the right to vote.” Meaning that the 24th Amendment does not “ask whether ‘a particular outcome would not have happened “but for” the purported cause.’” Which is ludicrous, because that is exactly what it says. Felons would be given the right to vote “but for” the fact that they did not pay their exorbitant fees and costs of court.
Other voting rights amendments (15th, 19th and 26th), as the majority opinion indicates, which do have “but-for” causation, use an almost identical phrase “on account of.” Any layperson or dictionary (as the majority points out) would consider those phrases “on account of,” “by reason of” or “because of” to mean the same thing, yet the majority believes that the difference is big enough to warrant the continued disenfranchisement of 10% of Florida’s voting population.
Furthering this wanton twisting on plain meaning, the court also decided court costs and fees cannot be considered taxes. In explaining the difference between a tax and a fee, the court cited the Supreme Court:
“The Supreme Court has explained in multiple contexts that ‘if the concept of penalty means anything, it means punishment for an unlawful act or omission.’”
That is what they argue differentiated court costs and fees from a tax — because they are levied for the purposes of punishment. This is a reversal of the district court who said the fees and costs Florida imposes on felons are “other tax(es)” prohibited by the 24th Amendment, as they are “assessed regardless of whether a defendant is adjudged guilty, bear no relation to culpability, and are assessed for the sole or at least primary purpose of raising revenue to pay for government operations ... A tax by any other name.”
But as the dissenting opinion written by Judge Jordan clearly explains, “(I)n National Federation of Independent Business v. Sebelius, the Supreme Court analyzed whether a “penalty” (so labeled by Congress) imposed on those who did not comply with the individual mandate to purchase health insurance under the Affordable Care Act was a tax.” The court concluded “that the so-called ‘penalty’ was indeed a tax.” Applying that to this case, “(u)nder these authorities, the fees and costs Florida imposes on convicted defendants are taxes within the meaning of the 24th Amendment.”
It is disgraceful how people in positions of power can be so blasé to the effects their rulings will have on the people who are attempting to participate in the democracy built for them. Indeed, felons broke that social contract by turning against that same society, but by paying their debt through imprisonment and labor, can they not be welcomed back and allowed to participate?
Floridians thought so and passed an amendment to their constitution that initiated felon enfranchisement. I can only echo Judge Pryor’s dissent that “(i)f this is not a nullification of the will of the electorate, I don’t know what would be. And it is a dream deferred for the men and women who, having paid their debt to society to the extent of their capacity—often by having served lengthy prison sentences and periods under supervision—are deprived of the franchise that Amendment 4 promised to automatically restore.”