In a brief order issued without explanation, the U.S. Supreme Court refused to intervene in a case where lower courts may let Florida Republicans abridge the voting rights of nearly a million otherwise eligible voters.
More specifically, the Court declined to overturn an 11th Circuit Court of Appeals “stay” on enforcement of a lower-court decision that a Florida law limiting a voter-approved ex-felon voting-rights restoration is unconstitutional.
In dissent (and joined by Justices Ruth Bader Ginsburg and Elena Kagan; it’s unclear where Justice Stephen Breyer came down), Justice Sonia Sotomayor had plenty to say about the Florida law in question, which she described as a “pay to vote scheme” and a “voter paywall.” As she pointed out, a federal trial judge had exhaustively examined the legislation Republicans enacted requiring that ex-felons identify and pay off any fines, fees, and restitution they might owe before voting, and concluded that it violated constitutional equal protection and due-process rights, and also violated the 24th Amendment banning poll taxes. The full 11th Circuit (whose three-judge panel had earlier decided that the state was unlikely to prevail on the merits) put that decision on hold without comment, pending its full review of the lower-court decision. And the Supreme Court will let them go right ahead.
The big picture here is that a supermajority of Florida voters approved a 2018 ballot initiative restoring ex-felons’s voting rights, with no explicit conditions (though there were exclusions for those convicted of certain heinous crimes). The next year the Republican-controlled legislature added the proviso taking a literal approach to the concept of “paying one’s debt to society,” knowing full well it would mostly affect poor and minority ex-felons who were overwhelmingly likely to vote for Democrats. It was a pretty blatant partisan effort to undermine the whole ballot initiative, and may yet succeed in limiting the franchise in November, when Florida is expected to be a key battleground state.
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.
Today’s order is a reminder that any “liberalism” exhibited by the Roberts Court does not extend to voting rights.