SCOTUS aids GOP voter suppression of 1 million voters in Florida

There have been far too many reports and commentaries recently suggesting that Chief Justice John Roberts has become a “liberal” based upon a handful of somewhat surprising opinions this past term. Puh-lease.

John Roberts, since his days in the Reagan Justice Department, has first and foremost been an advocate for GOP voter suppression, just like the Chief Justice whom he clerked for and replaced on the court, William Rehnquist. Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act. “Among all jurists of the twenty-first century, Roberts arguably will go down as the foremost enabler of voting manipulation and voter suppression.” Unequal Justice: John Roberts’ Dark Legacy of Voter Suppression.

The Roberts Court today added another abomination of GOP voter suppression to this dark legacy.

Legal analyst Mark Joseph Stern explains at Slate, The Supreme Court Just Stopped 1 Million Floridians From Voting in November:

The Supreme Court all but guaranteed that nearly 1 million Floridians will be unable to vote in the 2020 election because of unpaid court debts in a shattering order handed down on Thursday. Its decision will throw Florida’s voter registration into chaos, placing a huge number of would-be voters in legal limbo and even opening them up to prosecution for casting a ballot. The justices have effectively permitted Florida Republicans to impose a poll tax in November.

Florida’s ex-felons have a right to vote under both the state and federal constitutions. In 2018, a supermajority of residents approved a constitutional amendment that abolished a Jim Crow–era law permanently disenfranchising convicted felons. GOP lawmakers promptly sabotaged this amendment by passing a law that compelled formerly incarcerated people to pay all fines and fees associated with their sentence. Florida imposes a mind-boggling array of fees on defendants to fund its criminal justice system, and the new law would disenfranchise almost a million of the roughly 1.4 million voters who were poised to regain their voting rights.

U.S. District Judge Robert Hinkle sharply limited the law’s scope in May. Hinkle found that the measure abridged the right to vote on the basis of wealth in violation of the equal protection clause of the 14^th Amendment, and that it amounted to a tax on the ballot in violation of the 24^th Amendment. Just as critically, over an eight-day trial, Hinkle exposed a secret that Republicans tried desperately to hide: The state has no idea how much ex-felons actually owe. It has kept few records of court debt, and those records that do exist are often inscrutable. As the judge explained:

A group of well-trained, highly educated individuals—a professor specializing in this field with a team of doctoral candidates from a major research university—made diligent efforts over a long period to obtain [court debt] information on 153 randomly selected felons. They found that information was often unavailable over the internet or by telephone and that, remarkably, there were inconsistencies in the available information for all but 3 of the 153 individuals.

Furthermore, Florida has no intention to figure out how much ex-felons owe. As I wrote in May:

In theory, the Division of Elections screens all voter registrations for felony convictions and, now, unpaid fines and fees. But a state budget analysis found that the division would require at least 21 extra employees to screen the flood of applicants in light of Amendment 4. And the Legislature provided it with zero. As a result, there is currently a backlog of about 85,000 pending voter registrations from newly eligible Floridians. [Director of the Division of Elections Maria Matthews] estimated that her office would need 1,491 days to get through the backlog. If her entire staff worked weekends and holidays, then, it might be finished in time for the 2024 election.

To remedy this injustice, Hinkle issued an injunction allowing ex-felons to vote unless the state could prove they had outstanding court debt. He also let them vote if the state somehow made this showing, but ex-felons lacked the means to pay off that debt.

On July 1, however, the 11^th U.S. Circuit Court of Appeals swept away Hinkle’s injunction in an extremely rare and suspicious maneuver. (Because President Donald Trump flipped the 11^thCircuit in 2019, it now contains a conservative majority hostile toward voting rights.) The court immediately took the case en banc, bypassing the usual three-judge panel; a progressive panel might have upheld the rights of formerly incarcerated Floridian voters. (A three-judge panel had upheld Hinkle’s earlier decision blocking the law before trial.) Moreover, three Trump appointees on the 11^th Circuit have serious conflicts of interest. Two, Robert Luck and Barbara Lagoa, sat on the Florida Supreme Court when it heard arguments in a case about this exact law. Another, Andrew Brasher, defended an Alabama law that is extremely similar to Florida’s and raises identical constitutional questions. Luck and Lagoa already participated in the decision to lift Hinkle’s injunction. Brasher was too new to participate—he assumed office a day prior—but has given no indication that he will recuse from the case moving forward.

The U.S. Supreme Court blessed this chicanery on Thursday by refusing to reinstate Hinkle’s injunction, without bothering to explain its reasoning. Its decision prompted Justice Sonia Sotomayor to write an incandescent dissent, joined by Justices Ruth Bader Ginsburg and Elena Kagan. (Justices are not obligated to note their dissents from orders, so it is unclear whether Justice Stephen Breyer, a fellow liberal, dissented as well.) Sotomayor noted that the court had prevented “thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” Indeed, “nearly a million” people will be “barred from voting because of Florida’s alleged wealth discrimination, inscrutable processes, and tax.”

Sotomayor pointed out that, due to Hinkle’s rulings, Florida’s “voter paywall” has been on hold for nearly a year. During that period, “tens of thousands of Floridians with felony convictions have already registered to vote.” After all, the courts had said they could. Now these individuals “will have no notice of their potential ineligibility or the resulting criminal prosecution they may face for failing to follow the abrupt change in law.”

“Ironically,” Sotomayor concluded, the Supreme Court has recently forbidden courts from making “voting safer during a pandemic,” ostensibly to avoid voter “confusion.” Now SCOTUS blithely “disrupts a legal status quo and risks immense disfranchisement” by greenlighting a scheme that will create confusion and chaos for 1 million voters.

There is very little chance that the 11^th Circuit will decide this case before voter registration for the general election ends in Florida. The Supreme Court has thus ensured that a large portion of the state’s ex-felons cannot cast a ballot in November without fear of prosecution. In her dissent, Sotomayor bemoaned her colleagues’ “trend of condoning disfranchisement.” But at this point, the justices are not just condoning voter suppression. They are actively facilitating it.

As election-law expert Rick Hasen notes, this has become a pattern for SCOTUS this year:

Conservatives on the Court have sided against voters now in emergency election-related litigation (on the so-called shadow docket) in every election case this season: Wisconsin, Alabama, Texas, and now Florida. Liberals have dissented in each of these cases (except perhaps Breyer in this one). I’ve argued that this is a very disturbing pattern for November.

The five conservatives on the U.S. Supreme Court will do nothing to protect the right to vote, they are enabling GOP voter suppression efforts. They are acting as partisans, not jurists. In the event this election is close, and Donald Trump disputes the results of the election, as he regularly threatens to do, the Roberts Court has shown its hand that it will pull another Bush v. Gore if the election winds up in the court.

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