In 2018, Florida voters amended their Constitution with 64.55% of the voting population to add a provision automatically restoring the franchise to felons who completed all the terms of their sentence.[i] However, an unfortunate advisory opinion issued by the Florida Supreme Court crushed the hopes of thousands of felons seeking to restore their right to vote. In a per curiam opinion, the Court affirmed Governor DeSantis’ interpretation of the phrase “terms of their sentence” to include any and all legal, financial obligations (LFOs) owed by felons.[ii] This reading adds an unconstitutional hurdle on felons by violating the Twenty-Fourth Amendment’s prohibition on “any poll tax or other tax” which abridges suffrage. Although states are free to disenfranchise felons if they choose,[iii] once a state takes meaningful steps towards felon re-enfranchisement, legislation must be crafted to comply with the Constitution. As such, states should be wary of placing any pecuniary preconditions in felon re-enfranchisement statutes as they may be struck down.
Felony disenfranchisement can be traced back to ancient Greece, where only the most serious offenders received the punishment.[iv] This notion of “civil death” continued through medieval times and eventually found itself well-rooted in North American colonial law and in most State constitutions.[v] However, in the past two decades, many states have changed their positions and created clear paths toward felon re-enfranchisement. As of 2022, two states allow felons to vote from prison; twenty-two states permit felons to vote post-release; and fifteen states grant felons the franchise after release from prison and completion of parole and probation.[vi] In the remaining eleven states, including Florida, felons must not only finish their terms of imprisonment, parole, and probation, but they must also finish their sentence.[vii]
Courts have upheld several re-enfranchisement laws that force felons to pay their LFOs (e.g., restitution, fines, costs, and fees) before voting. They claim that the Twenty-Fourth Amendment is inapplicable because the LFOS are penalties, not taxes, part of the criminal sentence. However, this reasoning is unpersuasive because having an incidental, punitive purpose should not be outcome determinative. By definition, a tax is a compelled monetary charge imposed by the government that benefits the government.[viii] Florida notoriously relies on these court-ordered fees “to underwrite its criminal justice system and, at times, uses revenue generated by fees to fill gaps in the justice system and state budgets.”[ix] Similarly, fines are imposed at sentencing and are often paid directly to the State.
The drafters of the Twenty-Fourth Amendment sought to prevent any sum of money from preventing an individual from voting. Legislators during house debates emphasized the “important right to cast a free ballot” and outlaw the “undemocratic, feudal practice of placing a price tag on the right to vote.”[x] Even though poll taxes had steadily declined in popularity leading up to the Amendment’s ratification, this financial condition was seen as so harmful to democracy that the House passed it by an overwhelming 295 to 86 vote.[xi] State laws placing this absolute precondition on voting clash with the goal of the Twenty-Fourth Amendment and should be invalidated as they will yield illogical results. For example, take two felons convicted of the same crime, sentenced to the same term of imprisonment, probation, and parole, and obligated to pay the same amount of restitution. Only the felon with the economic means to pay their LFOs will be eligible to regain their right to vote. Accordingly, the Twenty-Fourth Amendment should be read broadly to encompass any monetized sum that erects a wall between the voter and the poll.
Florida, and the other ten states requiring the full payment of LFOs, should sever that unconstitutional provision from their felon re-enfranchisement laws. This is the only way to protect felons of limited financial means from being permanently[xii] barred from recouping their fundamental right to vote.
[i] See Jones v. DeSantis, 462 F. Supp. 3d 1196, 1205 (N.D. Fla. 2020), rev’d and vacated sub nom. Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020),aff’d sub nom. Jones v. Governor of Florida, 15 F.4th 1062 (11th Cir. 2021) (noting that felons convicted of murder and sexual offense felonies remained disenfranchised).
[ii] See Advisory Opinion to Governor re Implementation of Amendment 4, The Voting Restoration Amendment, 288 So. 3d 1070, 1072 (Fla. 2020).
[iii] See Richardson v. Ramirez, 418 U.S. 24, 56 (1974).
[iv] See Erin Kelley, Racism & Felony Disenfranchisement: An Intertwined History, Brennan Ctr. For Just. (May 9, 2017), https://www.brennancenter.org/our-work/research-reports/racism-felony-disenfranchisement-intertwined-history.
[v] See id.; see also ProCon.org, Historical Timeline: US History of Felon Voting / Disenfranchisement, Britannica ProCon.org, https://felonvoting.procon.org/historical-timeline/ (last updated Oct. 25, 2022).
[vi] See Christopher Uggen, Ryan Larson, Sarah Shannon and Robert Stewart, Locked Out 2022: Estimates of People Denied Voting Rights, The Sentencing Project (Oct. 25, 2022), https://www.sentencingproject.org/reports/locked-out-2022-estimates-of-people-denied-voting-rights/.
[vii] Id.
[viii] See Johnson v. Bredesen, 624 F.3d 742, 769 (6th Cir. 2010).
[ix] See The Hidden Costs of Florida’s Criminal Justice Fees, Fines & Fees Just. Ctr. (Mar. 10, 2012), https://finesandfeesjusticecenter.org/articles/hidden-costs-floridas-criminal-justice-fees/.
[x] See Johnson, 624 F.3d at 775 (Moore, J., dissenting).
[xi] See The Twenty-fourth Amendment, Hist., Art & Archives: U.S. H.R., https://history.house.gov/HistoricalHighlight/Detail/37045 (last visited Feb. 27, 2023).
[xii] See Denise-Marie Ordway, Criminal restitution: Tens of billions in debt remain unpaid, The Journalist’s Res. (Mar. 5, 2018), https://journalistsresource.org/criminal-justice/criminal-restitution-debt-victims/ (noting that in 2016, $110 billion in restitution debt was outstanding, but the federal government deemed $100 billion of that to be “uncollectible” based on the offender’s ability to pay).
