A POLL TAX BY ANY OTHER NAME: HOW THE ELEVENTH CIRCUIT ERRED IN UPHOLDING FLORIDA’S PAY-TO-VOTE REQUIREMENT AND WHAT COMES NEXT
By: Dina Kostrow, Volume 105 Staff Member
Until recently, Florida was one of only a few states in which citizens convicted of a felony permanently lost the right to vote. In 2018, it looked like the tide was turning. A 64.55% super-majority of Florida voters approved Amendment 4, which restored the right to vote for most returning citizens “upon completion of all terms of sentence.” However, the subsequent Republican-driven Senate Bill 7066 (SB 7066) and the Eleventh Circuit Court of Appeals’ ruling on the bill’s constitutionality significantly limited the reach of the amendment. SB 7066 clarified that “all terms of sentence” includes payment of outstanding legal financial obligations (LFOs) such as fines, fees and restitution. As a result, returning citizens are now faced with what is effectively a pay-to-vote requirement. Those who are unable to pay their LFOs continue to be barred from voting. One estimate suggests that “nearly 900,000 Floridians who have completed their sentences remain disenfranchised”—largely due to an inability to pay their LFOs.
This Post critiques the Eleventh Circuit’s finding that costs and fees (two types of LFOs) related to returning citizens’ criminal proceedings do not constitute a poll tax or other tax per the Twenty-Fourth Amendment. It emphasizes that Florida’s pay-to-vote requirement remains a relevant issue. It then discusses the extralegal solution of organizations and wealthy donors paying disenfranchised citizens’ outstanding LFOs. It ultimately underscores the need for a legal solution but acknowledges the political roadblocks that make such an outcome unlikely.
I. A POLL TAX BY ANY OTHER NAME.
SB 7066 prompted Jones v. DeSantis (Jones I), in which several returning citizens filed suit against the State in federal district court. Plaintiffs claimed that the bill “discriminates on the basis of wealth. People with the financial means to satisfy their LFOs . . . will have their rights automatically restored,” while those who cannot afford to pay will remain disenfranchised indefinitely. They further alleged that this “wealth-based discrimination not only violates the Fourteenth Amendment, but also the Twenty-Fourth Amendment by functioning as a modern-day poll tax.” Although the Jones I court did issue a permanent injunction, forcing Florida to allow those unable to pay their LFOs to register and vote, the suit did not end favorably for the plaintiffs. The Eleventh Circuit stayed the injunction, and the Supreme Court refused to vacate the stay. Ultimately, in Jones v. Governor of Florida (Jones II), the en banc Eleventh Circuit drove a nail in the ballot box by reversing and vacating the district court’s decision in Jones I after finding that SB 7066 does not violate the Constitution.
In Jones II, the Eleventh Circuit analyzed the constitutionality of Florida’s pay-to-vote system, in part, under the Twenty-Fourth Amendment. The Twenty-Fourth Amendment “provides that a citizen’s right to vote in a federal election ‘shall not be denied or abridged by . . . any State by reason of failure to pay any poll tax or other tax.’” One question the court answered was “whether fees and costs imposed in a criminal sentence are taxes.” It emphasized that fees and costs stemming from criminal proceedings do not constitute a tax but instead a penalty because “they are part of the State’s punishment for a crime.” It used this reasoning to justify its conclusion that the pay-to-vote system did not violate the Constitution.
However, reality tells a different story. Both the district court majority and the Eleventh Circuit dissent noted that these fees and costs bear a stronger resemblance to the “other tax” prohibited by the Twenty-Fourth Amendment than they do to a punishment-related penalty. Whereas an LFO like restitution is clearly a part of an individual’s punishment for a crime, fees and costs are “routinely imposed,” “assessed regardless of whether a defendant is adjudged guilty, [not related] to culpability, and . . . assessed for the sole or at least primary purpose of raising revenue to pay for government operations . . . . A tax by any other name.”
Further, if these fees and costs are doled out with punitive intent, it stands to reason that the so-called punishment would fit the crime. That is not the case here. Rather, fees and costs are assessed uniformly regardless of whether the defendant is, for example, “adjudged guilty of a violent offense” or charged with a “minor nonviolent offense . . . and . . . not adjudged guilty.” Ultimately, the Jones II majority’s reasoning fails to convincingly establish that these costs and fees and, more broadly, Florida’s pay-to-vote system do not violate the Twenty-Fourth Amendment.
II. COMBATING FLORIDA’S PAY-TO-VOTE REQUIREMENT.
Given the fast-approaching registration deadlines for Florida’s 2022 gubernatorial and Senate races and the thousands of returning citizens that the state continues to disenfranchise, this pay-to-vote requirement needs a timely solution. One extralegal solution that has received some attention is nonprofits and wealthy donors paying returning citizens’ LFOs on their behalf. While this solution may serve as a pseudo-effective band-aid for now, it relies on continued donations from donors, which may not be sustainable. It also fails to address a significant administrative problem discussed by the parties and courts: even if an individual has the funds to pay their LFOs, the state often cannot tell them how much they owe or how much they have already paid. The payment-assistance model also fails to address the Constitutional issue discussed above. These efforts are laudable to be sure. But in order to eliminate disenfranchisement, the laws perpetuating it must change.
Unfortunately, a legal solution will likely be difficult to reach. Florida’s GOP-led legislature and Republican Gov. Ron DeSantis are responsible for instituting the pay-to-vote requirement and are thus unlikely to work toward its removal. Slightly less clear, however, is the extent to which Trump-nominated judges will continue to support voting restrictions that benefit the GOP in a post-Trump landscape. At the appellate level, “21 out of the 25 opinions [related to 2020 voting rules and] issued by the [ex-]president’s nominees were against loosening voting rules.” And while “Trump nominees have not uniformly sided with Republicans . . . many have ruled in favor of the GOP in major [voting] cases . . . .” This rings true with Jones II. The majority consisted of five Trump nominees and one Bush nominee, whereas four Clinton- and Obama-nominated judges comprised the dissent. The 6-4 split makes sense given that a disproportionate number of those impacted by Florida’s pay-to-vote system are Black and more likely to vote Democrat. Even so, if the Trump appointees’ allegiance was more to Trump than to the GOP, it is possible that the recent insurrection incited by Trump and a new Administration are enough to incentivize a less partisan, more justice-oriented approach to future challenges to Florida’s pay-to-vote system. If not, Florida’s pay-to-vote requirement may remain intact for the foreseeable future.
 See Disenfranchisement News: After Win in Florida, Iowa and Kentucky Consider Reform, Sent’g Project (Jan. 22, 2019), https://www.sentencingproject.org/news/disenfranchisement-news-win-florida-iowa-kentucky-consider-reform/ [https://perma.cc/HRR7-ERRH].
 Amendment 4 makes explicit that it does not apply to any “person convicted of murder or a felony sexual offense.” Fla. Const. art. 6 § 4(a).
 I use “returning citizen” in place of “felon” or “convicted felon” to acknowledge that an individual cannot be defined by a prior felony conviction and that, given high false conviction rates, a conviction certainly does not a felon make. See Virginia Hughes, How Many People Are Wrongly Convicted? Researchers Do the Math, Nat’l Geographic (Apr. 28, 2014), https://www.nationalgeographic.com/science/phenomena/2014/04/28/how-many-people-are-wrongly-convicted-researchers-do-the-math/#close [https://perma.cc/J8YM-T9UW].
 See Fla. Const. art. 6 § 4(a); Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018), Ballotpedia, https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018) [https://perma.cc/W7E3-Z9NR] (last visited Jan. 20, 2021); Dan Berman, Supreme Court Says Florida Can Enforce Law Limiting Ex-Felons Who Owe Fines from Voting, CNN Pol. (July 16, 2020), https://www.cnn.com/2020/07/16/politics/supreme-court-florida-felons/index.html [https://perma.cc/NB63-LC7P].
 See S.B. 7066, 2019 Leg., Reg. Sess., at § 25 (Fla. 2019).
 Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc).
 Berman, supra note 4; see S.B. 7066, 2019 Leg., Reg. Sess., at § 25 (Fla. 2019).
 See Lawrence Mower & Langston Taylor, Florida Ruled Felons Must Pay to Vote. Now, It Doesn’t Know How Many Can, Tampa Bay Times (updated Oct. 11, 2020), https://www.tampabay.com/news/florida-politics/elections/2020/10/07/florida-ruled-felons-must-pay-to-vote-now-it-doesnt-know-how-many-can/ [https://perma.cc/F2MA-WH95].
See Disenfranchisement News: After Win in Florida, Iowa and Kentucky Consider Reform, supra note 1; see also Raysor v. DeSantis, 140 S. Ct. 2600, 2600 (2020) (Sotomayor, J., dissenting) (“Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money.”)
 Jones v. DeSantis, 462 F. Supp. 3d 1196, 1250–52 (N.D. Fla. 2020), rev’d and vacated sub nom. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc).
 See First Amended Complaint, Jones v. DeSantis, 462 F. Supp. 3d 1196 (N.D. Fla. 2020) (No. 19-cv-300).
 Jones v. DeSantis, 462 F. Supp. 3d at 1250–52.
 McCoy v. Governor of Fla., 2020 WL 4012843, at *1 (11th Cir. July 1, 2020).
 Raysor v. DeSantis, 140 S. Ct. 2600, 2600 (2020) (mem.).
 Jones v. Governor of Fla., 975 F.3d 1016, 1049 (11th Cir. 2020) (en banc).
 Id. at 1037–39.
 Jones v. DeSantis, 462 F. Supp. 3d at 1231 (quoting U.S. Const. amend. XXIV).
 The courts also discussed fines and restitution in this context; however, those forms of LFOs are beyond the scope of this Post.
 Jones v. Governor of Fla., 975 F.3d at 1037.
 Id. at 1038
 See Jones v. DeSantis, 462 F. Supp. 3d at 1233–34; Jones v. Governor of Fla., 975 F.3d at 1106–07 (Jordan, J., dissenting).
 Jones v. Governor of Fla., 975 F.3d at 1099 (Jordan, J., dissenting) (quoting Jones v. DeSantis, 462 F. Supp. 3d at 1233–34).
 Id. at 1101–02 (quoting Jones v. DeSantis, 462 F. Supp. 3d at 1233).
 See Election Dates, Fla. Div. of Elections, https://dos.myflorida.com/elections/for-voters/election-dates/ [https://perma.cc/RAD4-9L44] (last visited Jan. 20, 2021); Disenfranchisement News: After Win in Florida, Iowa and Kentucky Consider Reform, supra note 1; see also Raysor v. DeSantis, 140 S. Ct. 2600, 2600 (2020) (Sotomayor, J., dissenting) (“Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money.”).
 See Fines & Fees Program, Florida Rights Restoration Coalition, https.www.floridarrc.com/finesprogram [https://perma.cc/AR4C-TL5A] (last visited Feb. 1, 2021); Dan Merica & Devon M. Sayers, Florida Attorney General Asks for Investigation of Bloomberg’s Efforts to Reinstate Felon Voting Rights, CNN Pol. (updated Sept. 23, 2020), https://www.cnn.com/2020/09/23/politics/florida-michael-bloomberg-investigate-felon-voting-rights/index.html [https://perma.cc/UM3R-SAWT].
 See Jones v. Governor of Fla., 975 F.3d at 1058–60 (Martin, J., dissenting).
 See Berman, supra note 4.
 Ann E. Marimow & Matt Kiefer, Judges Nominated by President Trump Play Key Role in Upholding Voting Limits Ahead of Election Day, Wash. Post. (Oct. 31, 2020), https://www.washingtonpost.com/politics/2020/10/31/trump-judges-voting-rights/ [https://perma.cc/H39U-WQAT].
 See Jones v. Governor of Fla., 975 F.3d at 1017; Eleventh Circuit Judges, United States Court of Appeals for the Eleventh Circuit, https://www.ca11.uscourts.gov/eleventh-circuit-judges [https://perma.cc/KAU6-TUVZ] (last visited Feb. 1, 2021).
 See Mower & Taylor, supra note 8.
 Nicholas Fandos, Trump Impeached for Inciting Insurrection, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html [https://perma.cc/9WKT-L9BK].