We are now less than two months from Election Day, and the next several weeks are likely to bring a rush of court decisions determining who is actually able to vote.
Both sides are gearing up for litigation. Last May, Republicans announced they have a $20 million legal war chest. Democrats have assembled a small army of hundreds of lawyers — including two former US solicitors general and a former US attorney general — hoping to counter the GOP’s legal team in fights over how ballots will be cast and who will be counted.
If last week is any indication, the right to vote is unlikely to fare well in a judiciary that is increasingly dominated by Republicans: Voting rights cases out of Florida and Texas handed important victories to the GOP. At least one of those victories is likely to disenfranchise tens of thousands of voters altogether. (In Wisconsin, Democrats fared better this week in a ballot-printing case.)
The Florida case involves a longstanding dispute over individuals with felony convictions. In 2018, Florida voters overwhelmingly approved a state constitutional amendment intended to restore felons’ voting rights. But the state’s Republican-controlled legislature almost immediately enacted legislation seeking to prevent most of these individuals from actually being able to vote.
On Friday, in a party-line vote on Jones v. Governor of Florida, the Republican-controlled United States Court of Appeals for the 11th Circuit backed the state legislature’s play — effectively disenfranchising most of the people Floridians voted to reinfranchise.
One day earlier, a three-judge panel of the Fifth Circuit handed down its decision in Texas Democratic Party v. Abbott. That case involves an unusual Texas law that allows voters over the age of 65 to obtain an absentee ballot upon request — thus avoid voting in-person in the middle of a pandemic — but prevents most younger voters from voting absentee.
This kind of age discrimination is highly dubious under the 26th Amendment, which provides that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Nevertheless, a majority of the Fifth Circuit panel upheld Texas’s law in Texas Democratic Party.
The Florida case
Jones involves a 2018 state constitutional amendment intended to restore voting rights to people with felony convictions. Prior to that amendment, Florida residents with felony convictions effectively had to beg the state governor to restore their right to vote.
But the 2018 amendment was poorly drafted. It provides that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Shortly after it took effect, the GOP-controlled state legislature enacted a law interpreting the words “upon completion of all terms of sentence” to require payment of all fines, fees, or costs contained in the original sentencing document.
As an expert witness explained during the trial phase of the Jones case, of the more than 1 million people who would otherwise have their rights restored due to the 2018 amendment, 77.4 percent owe at least some money. Many of these individuals are indigent and cannot afford to pay these costs.
Worse, the state’s record-keeping system for these fines and fees is so disorganized that many individuals who can afford to pay can’t even figure out how much money they owe.
Often, the only record of how much money an individual owes the state is the original sentencing document from a trial that may have occurred decades ago. Many counties charge a fee for a copy of this judgment, thus forcing individuals to pay a fee just to learn how much money they owe. And some of these documents are so old that they’ve been lost — meaning that it may be impossible for some people with felony convictions to discover how much money they owe.
Meanwhile, even if an individual is able to obtain a copy of the judgment against them, it’s often unclear which fees they must pay in order to regain their voting rights. A Florida resident convicted of one felony and two misdemeanors, for example, might receive a judgment informing them that they owe $5,000 in fines for all three offenses combined. But, because the judgment does not itemize which portion of this $5,000 arises from the felony, they cannot know how much of it they must pay in order to restore their rights.
And then there are problems within the state’s accounting system. As Judge Adalberto Jordan explains in a dissenting opinion in Jones, “Florida has no record of restitution payments at all, except in the smaller number of cases when restitution is payable to or through the Clerk of Courts or the Department of Corrections” (“restitution” means payments directly to the victim of a crime). Thus, many individuals who have already paid restitution have no way to confirm that they’ve done so.
The state, meanwhile, is supposed to have a process that screens individuals with felony convictions and tells them whether they’ve met their obligations, but that process is so slow that it’s practically nonexistent. As Jordan writes, the state “has processed 0 out of 85,000 pending registrations of felons (that’s not a misprint—it really is 0), and has come up with conflicting (and uncodified) methods for determining how ... payments by felons should be credited.”
Given these facts, Florida residents who are unable to even determine how much they owe presented a very strong argument that they were denied constitutionally required due process. As the Supreme Court held in Chicago v. Morales (1999), a criminal law may be unconstitutionally vague for two reasons. It “may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits,” or it “may authorize and even encourage arbitrary and discriminatory enforcement.”
A law that forces voters to guess whether they have complied with the law — and then potentially subjects those voters to criminal penalties if they guess wrong — rather obviously is likely to lead to arbitrary or discriminatory enforcement. How is a voter supposed to defend themselves if a prosecutor accuses them of voting illegally when no one knows if that voter has met their legal obligations in the first place?
Nevertheless, the 11th Circuit’s Republican majority, in an opinion by Judge William Pryor, held that Florida’s law is not unconstitutionally vague. The plaintiffs’ concerns, Pryor wrote, “arise not from a vague law but from factual circumstances that sometimes make it difficult to determine whether an incriminating fact exists.”
And that, according to Pryor and the five Trump appointees who joined his opinion, is sufficient reason to disenfranchise a huge swath of Florida voters. The 85,000 new voters who’ve already registered are likely to be reluctant to cast a ballot for fear they may be prosecuted later for failing to pay a hidden fee. And many thousands of other voters likely haven’t even bothered to register due to uncertainty about whether they may lawfully vote.
The Texas case
Most states permit all lawful voters to obtain an absentee ballot. Texas is one of a handful of outlier states that only allows people to vote absentee if they provide a valid “excuse,” such as a claim that they will be away from their home county on Election Day.
In Texas, any voter over the age of 65 has a valid “excuse” permitting them to vote absentee, but most younger voters must vote in person. Texas Democratic Party challenges this age discrimination, citing the 26th Amendment’s statement that the right of citizens over the age of 18 “shall not be denied or abridged by the United States or by any State on account of age.”
A majority of the Fifth Circuit panel rejected this argument — somewhat surprisingly in an opinion joined by Judge Carolyn Dineen King, a left-leaning Carter appointee.
The majority opinion in Texas Democratic Party focuses largely on the two verbs in the 26th Amendment’s text — “denied” and “abridged.” Texas’s law does not “deny” voting rights to younger voters because they still have the option of voting in person. More controversially, the majority defines the word “abridged” very narrowly.
“We hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” Judge Leslie Southwick writes for the Fifth Circuit.
The upshot of this holding is that Texas’s discriminatory law is constitutional because it did not take anything away from younger voters. Prior to 1975, the state treated older and younger voters the same. In that year, the state enacted a law allowing voters over the age of 65 to vote absentee, while leaving younger voters in the same position they were in before.
Such a move, according to the Fifth Circuit, is fine. The decision in Texas Democratic Party effectively holds that age discrimination is acceptable under the 26th Amendment, just so long as a state doesn’t enact a law that makes younger voters worse off than they were before the law was enacted.
The partisan implications of this decision could be profound. In recent elections, older voters have tended to prefer Republicans to Democrats — although recent polls show Democrat Joe Biden performing well among older voters. If past trends hold, however, a law making it easier for older voters to cast their ballots is likely to benefit Republicans.