US Supreme Court denies application to vacate stay, disenfranchising almost one million would-be voters in Florida
Raysor v DeSantis 591 US ____ (2020)
Summary
On 16 July 2020, the United States Supreme Court, without opinion, denied an application to vacate the Florida Eleventh Circuit Court’s (Eleventh Circuit) stay of a permanent injunction. The permanent injunction would have prevented Florida from enforcing a law that requires people with a felony conviction to pay all outstanding fines, fees, and restitution payments, in order to be able to vote.
Justice Sotomayor, joined in dissent by Justices Ginsburg and Kagan, reproached the “Court’s inaction [as continuing] a trend of condoning disenfranchisement”.
The Supreme Court’s decision came days before voter-registration closed in Florida for its August 2020 primary elections. It left the law in a state of limbo for Floridians with felony convictions who had not or could not pay off fines and fees relating to their convictions, preventing almost one million otherwise eligible voters from registering to vote. What is more, the decision also left open the possibility that this group of prospective voters could face further felony charges for making "false affirmations" that they were eligible to vote, regardless of whether they knew they were not eligible as a result of the decision.
Facts
Constitutional reform
In November 2018, Florida voters approved a constitutional amendment to automatically restore the right to vote to people with felony convictions who had completed "all terms" of their sentences (except for those convicted of murder or a felony sexual offence). This measure, known as Amendment 4 (the “Voting Rights Restoration for Felons Initiative”), came into effect in January 2019 and provided that “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”.
On 28 June 2019, the Governor of Florida, Ron DeSantis, signed into law a Bill, known as SB 7066, which interpreted and implemented Amendment 4. The statute defined “all terms of sentence” to include any legal financial obligations (LFOs). This meant that people with felony convictions were required to pay all fines and fees, and complete all restitution, before they could register to vote.
Preliminary proceedings
In response to SB 7066, 17 plaintiffs filed consolidated lawsuits in the United States District Court for the Northern District of Florida (District Court). Among other things, they challenged the constitutionality of the LFO requirement under the Due Process and Equal Protection clauses of the Fourteenth Amendment and the Twenty-Fourth Amendment (which prohibits voting rights from being revoked merely because a poll tax or other tax has not been paid). The 17 plaintiffs alleged they had felony convictions and would therefore be eligible to vote but for the LFO requirement, except that they were unable to pay their LFOs.
The District Court issued a preliminary injunction, which prohibited state officials from preventing the 17 plaintiffs from registering to vote and finding that the plaintiffs were likely to succeed on their equal protection claims. This was affirmed by the Eleventh Circuit Court of Florida (Jones I).
Full trial and permanent injunction
Following these decisions, the case proceeded to a full trial in the District Court on behalf of a court-certified class of prospective voters.
On 24 May 2020, the District Court ruled, in a comprehensive judgement, that SB 7006 was unconstitutional (Jones II). It found that the LFO requirement:
created an unconstitutional wealth barrier to voting, in violation of the Equal Protection clause of the Fourteenth Amendment;
violated due process; and
constituted a tax, abridging the right to vote in violation of the Twenty-Fourth Amendment.
The District Court imposed a permanent injunction prohibiting enforcement of the LFO requirement and allowing the class to register to vote. The defendants, including Governor DeSantis, filed an appeal and sought a stay of the District Court’s decision and a hearing by the full bench of the Eleventh Circuit. On 1 July 2020 (19 days before voter-registration closed for Florida’s August 2020 primary elections), the Eleventh Circuit stayed the permanent injunction pending the appeal, and did not provide reasons for its order.
The plaintiffs filed an emergency application to the Supreme Court, requesting it to vacate the Eleventh Circuit’s stay of the permanent injunction.
Supreme Court Decision
On 16 July 2020, the conservative majority of the Supreme Court, without opinion, denied the plaintiffs’ application to vacate the Eleventh Circuit’s stay.
Justice Sotomayor, joined in dissent by Justices Ginsberg and Kagan, was critical of the Court’s order, arguing that it “[prevented] thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” The dissenting judgement is summarised below.
Standard of review
Pursuant to Coleman v Paccar Inc (Coleman), Justice Sotomayor held that the Supreme Court has jurisdiction to vacate an appellate Court’s stay where:
the case, which is pending in an appellate Court, “could and very likely would be reviewed here upon final disposition in the court of appeals”;
the rights of the parties may be seriously and irreparably injured by the stay; and
the appellate Court is demonstrably wrong in its application of accepted standards in deciding to issue the stay.
Justice Sotomayor held that the first two “Coleman prongs” would be easily satisfied, because:
nearly a million people were barred from voting because of Florida’s alleged wealth discrimination, inscrutable processes and tax, and that this was “exceptionally important and likely to warrant review”; and
these people would suffer irreparable harm if they were denied the right to vote or “incentivised to remain away from the polls” because of the Eleventh Circuit’s conflicting orders or Florida’s threat of prosecution.
On the third “Coleman prong”, Justice Sotomayor chided the Eleventh Circuit for being demonstrably wrong in its application of accepted standards when deciding the issue to stay, on the basis it:
failed to defer to the District Court’s extensive factual findings in Jones II, to which it owed deference;
appeared to contradict its prior view of the plaintiffs’ equal protection claims in Jones I; and
did not provide any factual findings or reasoning for staying the District Court’s decision, or an explanation as to why the rulings and findings of the District Court were incorrect.
Justice Sotomayor also noted that the Eleventh Circuit’s stay created “confusion” and “voter chill” shortly before a voter-registration deadline, which Purcell v Gonzalez (Purcell) counselled against. This was because the Eleventh Circuit upended the legal status quo, given the District Court’s decision in Jones II tracked the Eleventh Circuit’s decision in Jones I, and because the Eleventh Circuit did not vacate Jones I. This obfuscated the state of the law for would-be voters, where 85,000 Floridians with felony convictions had already registered to vote in reliance on Jones I.
Final comments
Justice Sotomayor highlighted discrepancies in the Supreme Court’s approach to voting-rights cases. Recently, the Supreme Court drew upon Purcell to override two Federal Court decisions, which sought to make voting safer during the COVID-19 pandemic, on the basis that the safety-related changes came too close to the election. However, in this case, where the Eleventh Circuit’s stay was shortly before a voter-registration deadline, disrupted the legal status quo and risked immense disenfranchisement, the Court “balked”.
What happened next?
On 11 September 2020, the Eleventh Circuit handed down its ruling on Governor DeSantis’ appeal. It reversed the District Court’s findings in Jones II and upheld SB 7006, thereby preventing people with felony convictions from voting if they had not met their LFOs.
Commentary
The US has a long history of disenfranchising people with felony convictions. A report by The Sentencing Project found that in 2020, approximately 5.17 million people are unable to have their voices heard in the electoral process due to a felony conviction.
Amendment 4 was a historic milestone for Florida, given its 150-year history of disenfranchising people with felony convictions. It was even more significant for Florida’s Black community. Prior to the reform, almost 20% of the State’s Black population were denied the right to vote. Notably, Republican elected officials in Florida were staunchly opposed to Amendment 4, despite nearly 65% of Floridians voting in favour of the reform.
Generally, in the US, Black communities are unduly impacted by restrictions on voting. Nationally, one in 16 African Americans of voting age is disenfranchised (a rate 3.7 times greater than that of non-African Americans).
In the seminal decision Roach v Electoral Commissioner (2007) 233 CLR 162, the High Court of Australia struck down a blanket ban depriving all those serving sentences for a criminal offence from voting at Commonwealth elections, on the basis that the disenfranchisement was not proportional to the offence and sentence. Unfortunately, jurisdictions across the country still deprive prisoners from voting for the duration of their sentences if serving sentences of a certain length, including just 12 months in NSW and WA. As in the US, these laws discriminate against Aboriginal and Torres Strait Islander people, who are vastly over-represented in Australian prisons.
The full text of the Supreme Court decision can be found here.
Carla Massaria is a Solicitor at King & Wood Mallesons.