Bench Memos

Law & the Courts

Puzzling Eleventh Circuit Ruling on Florida’s Re-Enfranchisement of Felons

In a ruling today in Jones v. Governor of Florida, an Eleventh Circuit panel held that a state constitutional amendment that conditions the restoration of a felon’s voting rights on his paying all fines, fees, and restitution imposed as part of his sentence violates that felon’s rights under the Equal Protection Clause if the felon is “genuinely unable to pay those obligations.” On an admittedly quick review of the 78-page ruling, I find it very puzzling.

The panel acknowledges that “there is nothing unconstitutional about disenfranchising felons—even all felons, even for life.” But somehow it casts Florida’s system of re-enfranchisement as “punish[ing] a class of felons based only on their wealth.” (Emphasis added.)

I don’t understand this characterization. What Florida is requiring is that felons satisfy the terms of their sentences before their voting rights are restored. Insofar as it makes sense to speak of punishing in this context, it thus would seem more accurate to state that Florida is simply “punishing a class of felons according to the sentences imposed on them.” How can anyone object to that?

The panel, expressly disagreeing with the “only two courts to face this precise claim,” holds that heightened scrutiny, rather than deferential rational-basis review, applies to “automatic felon re-enfranchisement schemes that, as a practical matter, deny indigent felons access to the franchise.”

I’ll note that the panel consisted of two Eleventh Circuit judges in senior status and a district judge, also in senior status, visiting from outside the circuit. (Oral argument took place just 22 days ago; I’d be impressed by the speed if the product were better.) I hope that the judges in active service on the Eleventh Circuit give this one a close look for en banc review.


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