Marjon Neal, 25, field organizer for For Our Future Florida, speaks to a small crowd outside the Donald L. Tucker Civic Center on the first day of early voting in Leon County. CD Davidson-Hiers/Florida Phoenix
The U.S. Court of Appeals for the 11th Circuit has an opportunity to invoke the Nineteenth Amendment to extend voting rights to Black women who can’t afford to pay the restitution required under Florida’s Amendment 4 of 2018.
Judging by oral arguments before a three-judge panel this week, it’s not clear they can or will.
The case could turn on whether the court needs to look for a specific intent by the Florida Legislature to discriminate against Black women ex-felons — who, according to a legal team from the Southern Poverty Law Center, face extraordinary financial barriers against meeting the “legal financial obligations” — meaning court-ordered fines, fees, and restitution — required.
Alternatively, the court could decide that it’s enough that the law implementing Amendment 4 discriminates in effect against the women.
The SPLC’s Nancy Abudo argued before the court last week that the law fails scrutiny under either test, but definitely fails the latter.
“We do not have to establish that Gov. DeSantis is a misogynist or that he is a racist. All we have to establish is that the law that the state of Florida enacted will have a disparate impact or pose … an undue burden on our clients,” she said.
It marked the third time Amendment 4 has come before the appeals courts, which hears cases from Alabama, Florida, and Georgia.
Another three-judge panel in February 2020 agreed with U.S. District Judge Robert Hinkle in Tallahassee that, in attaching financial obligations to restoration of ex-felons’ voting rights, without accounting for whether they could pay, the Legislature through a bill called SB 7066 all but imposed an unconstitutional poll tax.
That September, the full 11th Circuit overruled the panel, concluding that “the people of Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those who have not.”
But it was the first time the court has heard arguments under the Nineteenth Amendment, extending the franchise to women. Even while ruling against the overall law, Hinkle had rejected the SPLC’s Nineteenth Amendment claims at trial.
Abudu wants the appeals court to send the case back to Hinkle so he can reconsider the point.
The case before Senior Judge Gerald Bard Tjoflat and judges Jill Pryor and Adalberto Jordan involves Rosemary McCoy and Sheila Singleton, two Black women with felony records who have been denied the right to vote and claim their criminal records prevent them from getting jobs that would pay enough for them to satisfy thousands of dollars in restitution orders.
One-quarter of Black women in Florida live below the poverty line and those with criminal convictions suffer an unemployment rate of 43 percent, Abudu told the judges on Thursday, and enter the system at a disadvantage to every other population group.
“They are not less likely, but actually the least likely of those within the class of people with criminal convictions to be able to satisfy fully their legal financial obligations in order to vote in Florida,” Abudu said.
“This is not a temporary barrier to accessing the ballot box. Because of the significant amount of money that they owe in legal financial obligations, it actually results in them never, ever, being able to vote again,” she said.
“The state’s so-called interest in rehabilitation cannot be reasonably satisfied if it cannot be realistically achieved.”
Judge Jordan noted that most access-to-voting precedents within the circuit don’t require proof of intent to deny equal access. In felon disenfranchisement cases, however, circuit and U.S. Supreme Court precedent hold that parties do need to show discriminatory intent.
“I just think you’re running up against a wall of precedent that we as an intermediate appellate court can’t penetrate,” Jordan said.
Abudu insisted that, even under those precedents, the scale of the disadvantage here is sufficient for the court to grant relief.
“There’s absolutely no way that the state’s interest in rehabilitation through the payment of money could ever be satisfied in this circumstance,” she said.
Evidence in the case suggests ex-prisoners as a whole suffer an unemployment rate of 27 percent, but for Black women that’s 43.6 percent. The rates for Black men and white women, by comparison, are 35.2 percent and 23.2 percent, respectively. That definitely hobbles their ability to pay, Abudu argued.
“We are bringing a claim that is an intersectionality argument,” she said — that is, involving overlapping disadvantages based on race, gender, and class.
“We think that it is well within this court’s authority to impose a more strict or heightened level of scrutiny,” Abudu said.
In any case, she continued, this is the first time the circuit court has been asked to rule about how to apply the Nineteenth Amendment to these questions.
“There is no case or other authority that would prohibit this court from imposing a heightened level of scrutiny as to SB 7066,” and from striking down the law as applied because it places an undue on her clients, Abudo said.
Mohammed Jazil, arguing for the state, argued that to carve out an exception to the law based on gender and wealth “turns equal-protection concepts on their head.”
Members of the court expressed sympathy but questioned their ability to rule for the women.
“I think you’ve got the better of the argument on precedent. If I were writing on a blank slate, maybe not,” Jordan told Jazil.
Judge Tjoflat invoked City of Mobile v. Bolden, in which the U.S. Supreme Court upheld an at-large system for electing commissioners because it saw no discriminatory intent. Congress later overruled the court in an amendment to the Civil Rights Act of 1965, declaring it was only necessary to demonstrate discriminatory effect, he noted.
Jazil argued that, during trial, Hinkle found no disparate impact from the law on Black formerly incarcerated women as opposed to other populations, because the same pattern of discrimination applies even to people never convicted of any crime.
Abudo replied that, even so, Black women are not on equal footing with other populations.
“No question that when you look at every indicator that Black women are on the bottom,” she said, adding that that’s enough to impute to the Legislature an intention to discriminate.
“SB 7066 requires payment of money, of a fee, that our clients did not have the money to satisfy before they went into prison, do not have the money to satisfy now, and have presented ample evidence showing that they continue to struggle,” Abudo said.
In an interview following the arguments, Abudu said she thought the arguments went well. The court appeared “very understanding” of the claims presented, she said. “Overall, we’re optimistic.
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