In the fall of 2018, Florida voters amended the Florida Constitution, restoring voting rights to most people convicted of felonies “upon completion of all terms of sentence, including parole or probation.” (This excluded people convicted of murder or sexual offenses.) On June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 into law, defining “all terms of sentence” to include payment of all conviction-related restitution, fines, fees, and costs (“legal financial obligations”). People who could not determine the amount of their obligations, or who could not afford to pay them, were effectively disenfranchised.

In June and July 2019, five lawsuits were filed challenging SB7066:

• June 15, Mendez v. DeSantis
• June 28, Jones v. DeSantis
• June 28, Raysor v. Lee
• June 28, Gruver v. Barton
• July 1, McCoy v. DeSantis

All five suits, filed in the United States District Court for the Northern District of Florida, were assigned to Chief Judge Mark Walker. Consolidated on June 30, 2019 for purposes of case management, they were ultimately tried together as a single consolidated case. Chief Judge Walker recused himself on July 17, 2019, because his wife’s law firm had been retained to represent one of the defendants. The consolidated case was reassigned to Judge Robert L. Hinkle.

The plaintiffs were 19 individuals, the League of Women Voters of Florida, the NAACP Florida State Conference, and the Orange County Branch of the NAACP. Each group of plaintiffs advanced different legal theories and named different defendants. Combined, the consolidated suit named as defendants Governor DeSantis, his Secretary of State, and the Supervisor of Elections for each county where an individual plaintiff resided. The consolidated suit alleged that SB7066 violated the Ex Post Facto Clause of the United States Constitution; the First, Eighth, Fourteenth, and Twenty-Fourth Amendments; the National Voter Registration Act; and the Florida Constitution. The plaintiffs, represented by the Brennan Center for Justice, the Campaign Legal Center, the Southern Poverty Law Center, the ACLU, the ACLU of Florida, the NAACP Legal Defense and Educational Fund, and private counsel, sought declaratory and injunctive relief restoring their voting rights.

In their amended complaint of July 16, 2019, the Raysor plaintiffs sought class certification (which was eventually granted on April 7, 2020). The proposed class included “all persons who would be eligible to vote in Florida but for unpaid financial obligations.” Class members asserting that they were “genuinely unable to pay” would form a subclass.

The Governor petitioned the Florida Supreme Court on August 9, 2019 for an advisory opinion on the validity of SB7066. The court’s advisory opinion of January 16, 2020 announced that the constitutional amendment’s language “all terms of sentence” would have been understood by Florida voters to include “all legal financial obligations imposed in conjunction with an adjudication of guilt.” While awaiting this advisory opinion, the Governor unsuccessfully sought a stay of proceedings in the district court.

On August 15, 2019, the court denied the Supervisors of Elections’ motion to dismiss the case or to stay discovery. The Gruver plaintiffs moved for a preliminary injunction the same day. The injunction was granted on October 18, 2019, effective against all defendants except the Governor and the Supervisor of Elections for Orange County. The injunction prohibited officials from taking any action to prevent the named plaintiffs from registering to vote (if they asserted inability to pay) or from voting (if they demonstrated their inability to pay). Simultaneously, the court denied the Governor and the Secretary of State their motion to dismiss or abstain. 410 F. Supp. 3d 1284. The Eleventh Circuit upheld on February 19, 2020. 950 F.3d 795.

The Gruver plaintiffs sought in late October to expand the preliminary injunction to cover four additional named plaintiffs who were seeking to vote in November municipal elections. This motion was denied the first week of January 2020.

In the meantime, the district court partially stayed the injunction on December 19, 2019. While still protecting the plaintiffs’ ability to register, the modified injunction did not guarantee their ability to vote. This partial stay expired on February 11, 2020. The Eleventh Circuit upheld the preliminary injunction on February 19, ruling that, among other things, the state’s pay-to-vote requirement should be analyzed under a standard of heightened scrutiny rather than rational basis review. 950 F.3d 795.

On March 30, 2020, the court denied the state defendants’ motion for summary judgment, but dismissed the plaintiffs’ abandoned Ex Post Facto and Florida Constitution claims. The plaintiffs’ class certification motion was granted the following week, on April 7 (not in time for class members to vote in the March 2020 presidential primaries).

The trial was held from April 27–May 6 by videoconference (due to the COVID-19 pandemic). The court issued its opinion on the merits on May 24, 2020. Ruling that the state was in violation of the Fourteenth and Twenty-Fourth Amendments and the National Voter Registration Act, the court declared Florida’s requirements unconstitutional as applied to: those who could not vote because they could not afford to pay; those who could not vote because the amount to pay was unknown and “cannot be determined with diligence”; and those who could not vote because they owed the state “fees” or “costs.” However, a requirement to pay “fines and restitution…is not unconstitutional as applied to those who are able to pay.” The court named each plaintiff and specifically declared his or her eligibility to vote. It ruled that the plaintiffs in McCoy, Raysor, and Gruver could collect attorneys’ fees and costs (the plaintiffs in Jones and Mendez had not actively participated in the majority of the litigation).

As to the class and the subclass, the court issued an injunction requiring the state to create and advertise a form for obtaining an individual advisory opinion on voting eligibility. The injunction specified that if the state failed to respond to an individual submission within 21 days, the person would be automatically eligible to vote. It further directed the state to publish requirements for voting eligibility following a felony conviction.

The court explicitly retained jurisdiction to enforce the declaration and injunction.

The state defendants appealed the ruling on June 1, 2020. On June 14, the district court denied their motion to stay the ruling pending appeal. On July 1, the Eleventh Circuit granted the state’s motion for initial hearing en banc (that is, before the entire court, rather than a panel of three judges). Without explanation, it also granted a stay of the district court’s injunction, pending appeal. The Supreme Court, also without explanation and over a dissent by Justices Sotomayor, Ginsburg, and Kagan, denied a request to lift the stay.

On July 15, 2020, the plaintiffs filed a motion in the Eleventh Circuit seeking to disqualify 3 of the court’s 12 judges from hearing the appeal. Judges Lagoa and Luck had been justices of the Florida Supreme Court when it issued its advisory opinion in this case in August 2019; both had committed to the United States Senate that they would recuse themselves from cases in which they had previously played a role. Judge Brasher, as the Solicitor General of Alabama, had vigorously defended Alabama against a similar lawsuit shortly before his appointment to the federal judiciary.

Judge Brasher disqualified himself on July 21, 2020, but denied the plaintiffs’ motion to disqualify as moot: he emphasized that he was recusing because of his chambers policy, not as a result of the plaintiffs’ motion. Judges Lagoa and Luck denied the motion to disqualify on July 27, 2020.

The Eleventh Circuit heard oral arguments on August 18, 2020. On September 11, 2020, the court issued an opinion that reversed the judgment of the district court on the grounds that the plaintiffs failed to prove Constitutional violation.

The court held that: (1) the amendment and the statute did not violate Equal Protection Clause; (2) the amendment and the statute did not violate Twenty-Fourth Amendment; (3) felon re-enfranchisement laws were not void for vagueness; and (4) the amendment and the statute did not deny the plaintiffs' rights to procedural due process.

Because section 2 of the Fourteenth Amendment expressly allows for felon disenfranchisment, the Supreme Court had held in Richardson v. Ramirez that the Equal Protection Clause does not forbid it. Applying that precedent, the court held that Florida's Amendment 4 and Senate Bill 7066 did not violate the Equal Protection Clause under rational basis review. Additionally, the court held that because court costs and fees are legitimate parts of a criminal sentence, there was no basis to regard them as a tax. As such, the laws did not disenfranchise the individuals for failure to pay a tax, but rather because they had not "satisfied the demands of justice" as mandated by state statute. The state's justification for these voting requirements qualified as a constitutionally legitimate interest. Therefore the statutes satisfied the requirements of the Twenty-Fourth Amendment. Lastly, the criminal processes necessary for a conviction were sufficient to justify denying individuals the right to vote. The deprivation was a consequence of a felony conviction in Florida, so the court upheld Florida's conditional restoration of the right to vote.

The appeals court reversed the judgment of the district court and vacated the challenged portions of its injunction. Additionally, the Ninth Circuit severed and lifted the stay of the cross-appeal (Case No. 20-12304). This cross-appeal had been filed on June 19, 2020 by the plaintiffs in the McCoy case, which has been consolidated earlier in the litigation.

On October 21, 2020, the plaintiffs in the McCoy case filed an opening brief for the cross appeal on the questions of (1) whether a Nineteenth Amendment claim requires proof of discriminatory intent and (2) the appropriateness of the test applied by the lower court to the equal protection claims, given that the plaintiffs in McCoy are women.

The case is ongoing.

Nelius Wanjohi - 10/02/2019
Bogyung Lim - 03/26/2020
Gregory Marsh - 06/27/2020
Rachel Kreager - 10/29/2020


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