Federal Appeals Court Upholds Florida’s “Pay-to-Vote” Scheme


A divided U.S. Court of Appeals for the Eleventh Circuit ruled on Friday that a Florida law that bars people with felony convictions from voting unless they pay court fees, fines, and restitution is constitutional.

The decision is a significant reversal, overturning a lower court ruling in May that struck down Florida’s “pay-to-vote” scheme and ordered Florida to allow the overwhelming majority of people with felony convictions who could not afford to pay their outstanding legal financial obligations (LFOs) to vote. The court ruled it was unconstitutional to bar people from voting simply because they were too poor to pay.

The Eleventh Circuit put that order on hold, even though it had upheld a decision based on the same reasoning in March, and in July, the Supreme Court allowed Florida to enforce the law while the appeal was pending in the Eleventh Circuit.

On Friday, the Eleventh Circuit issued a 200-page decision upholding the Florida law that was passed last year to restrict the impact of Amendment 4—a ballot measure that restored voting rights for people convicted of felonies (except murder and sex offenses) who have completed their sentences.

The statute denies the franchise to “the overwhelming majority” of people who stood to benefit from Amendment 4. “Florida imposes substantial, often exorbitant, financial obligations on people convicted of felonies,” Judge Jill Pryor wrote in dissent, and nearly all of them are too poor to pay. As a result, “[t]he statute may in effect deny the franchise to virtually everyone who may have benefitted from the amendment.”

The majority held that “the proportion of felons who can eventually complete their sentences [by paying LFOs] has no bearing on” whether the law is constitutional. Instead, as Chief Judge William Pryor wrote for the majority, Florida is entitled to block poor people from voting while restoring the vote to those who can afford to pay on the theory that “felons who do complete their sentences—whatever their number—are generally more deserving of reenfranchisement than those who do not.”

Since the end of the Civil War, states in the American South have used various schemes to deny Black people the right to vote even though that right is protected by the 15th Amendment. Poll taxes were applied against mostly Black voters to create economic barriers to voting throughout most of the 20th century. The Voting Rights Act was passed to eliminate these barriers in the 1960s.

Since passage of the Voting Rights Act in 1965, the criminal justice system has been used to disenfranchise millions of Americans, mostly people of color. In his dissent, Judge Adalberto Jordan called the LFO requirement—which bars poor people from voting but allows those who can pay to vote—“the antithesis of equal treatment.”

“This ruling runs counter to the foundational principle that Americans do not have to pay to vote,” Julie Ebenstein, a senior staff attorney with the A.C.L.U.’s Voting Rights Project, told The New York Times. “The gravity of this decision cannot be overstated. It is an affront to the spirit of democracy.”

The other hurdle for people seeking to vote in Florida is that the state doesn’t track LFOs and has no mechanism for providing potential voters with notice of what and how much, if anything, they owe, Judge Jill Pryor explained.  Indeed, “countless scores of individuals will be uncertain of their eligibility to vote,” Judge Beverly Martin wrote in dissent.

At trial in May, the Florida Division of Elections identified more than 85,000 registered voters with felony convictions whose eligibility had to be screened—which would take until 2026 at the earliest, and possibly even into the 2030s. None of these screenings has been completed yet.

The majority wrote that, until the state completes its screenings of these registrations, “all 85,000 felons will be entitled to vote.” But Judge Jordan pointed out that those who choose to vote after registering, and then later find out that they are not in fact eligible to vote, may be subject to prosecution. And “there is no good-faith safe harbor to protect those who register and vote, but later turn out to be mistaken about their eligibility.”

A Legacy of Racial Injustice

Felony disenfranchisement laws are deeply rooted in our history of racial injustice.

During the 1860s and 1870s, Southern states passed laws disenfranchising people convicted of a felony in order to suppress the Black vote. Florida created an especially harsh felony disenfranchisement scheme, barring people from voting even after they completed their sentences.

As a result, Florida disenfranchised more potential voters than any other state, barring more than 10% of all potential voters and more than 21% of potential Black voters from the polls due to felony records.

In passing Amendment 4, “Florida’s voters had decided on their own initiative that the franchise should be restored to their fellow citizens,” Judge Jill Pryor wrote in dissent. “But Florida’s legislature slammed the door shut, barring perhaps a million would-be voters from any real and equal opportunity to rejoin their fellow Floridians and denying the electorate their choice to grant that opportunity.”