The Supreme Court issued an order Thursday allowing Florida to maintain its policy of preventing formerly incarcerated people from voting if they still have unpaid court debts. This is despite the fact that the Twenty-fourth Amendment specifically prohibits charging for the right to vote after Southern states used such poll taxes to block African Americans from voting. This order allowing Florida’s poll tax to be enforced could prevent nearly one million people from participating in the August 18 primary election and possibly the general in November as well. Unfortunately, it is only the latest of the Court’s incursion into access to the polls.
It was just two years ago that Florida voters took to the polls to overwhelmingly support Amendment 4, a state constitutional amendment restoring the voting rights to any Floridian with a felony conviction who has completed all the terms of their sentencing. Previously, these individuals had to wait an additional five to seven years before they could apply for reinstatement, and there was no guarantee the State Board of Executive Clemency would grant it. This provision was depriving 1.7 million Floridians of the right to vote — about 10% of the adult population, and notably, 21.5% of the adult African-American population.
Amendment 4 passed with a whopping 65% of the vote, but Republican lawmakers immediately passed a new law imposing an additional hurdle to voting rights for the formerly incarcerated. Even if they have served their time, the new law requires them to pay all fines and fees associated with their sentence. Of the 1.4 million people who should have been reinfranchised by Amendment 4, nearly a million were again blocked from the polls.
What’s so devious about this voter suppression scheme is that the state can’t even clarify for many of these individuals how much they supposedly owe. As Slate’s Mark Joseph Stern explained when a district court judge found the court fees law unconstitutional earlier this year, Florida “does not know who owes courts money or how much they owe” because reliable records do not exist. Essentially, Republican lawmakers reinstated the same disenfranchisement that voters thought they had put an end to.
“This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”Justice Sotomayor
The Supreme Court’s order keeps in place a stay that allows the new law to be enforced while the challenge to it proceeds. That decision almost guarantees that the matter won’t be resolved by the upcoming primary and general elections. Justice Sotomayor, joined by Justices Ginsburg and Kagan, wrote a blistering dissent that explains, “This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” Indeed, as The Sentencing Project explained in a 2018 report to the United Nations, punishing people differently simply because of their economic standing — and in fact, criminalizing poverty — is a hallmark of the U.S. criminal justice system.
Sotomayor concluded that the Court’s order continues “a trend of condoning disfranchisement.” She specifically referenced an order from April that also prevented thousands of people from having their votes counted.
Because of safety concerns regarding coronavirus pandemic, more Wisconsin voters had requested absentee ballots than state officials were prepared to send out. As a result, many had still not received their ballots in time to meet the deadline to return them. The Supreme Court’s order, literally issued the eve of Election Day, nevertheless required that the deadline be followed, prohibiting thousands of valid votes from being counted.
Supporting voting suppression efforts is not new for this Supreme Court’s conservative majority. From its 2013 Shelby County v. Holder decision gutting the Voting Rights Act to its ruling last year refusing to address partisan gerrymandering, the Court has repeatedly refused to protect the right to vote. As the pandemic threatens the safety of in-person voting and images of hours-long lines from states like Wisconsin, Georgia, and Kentucky further illustrate the resulting barriers, the consequences of these anti-voter decisions are as apparent as ever.
Unfortunately, such rulings from lower courts are also likely to become increasingly common thanks to the many judges that President Trump has appointed with Senate Republicans’ assistance. Many have egregious records defending voter suppression laws like voter ID requirements or voter roll purges. These laws disproportionately impact Black voters, and the Supreme Court even overturned North Carolina’s voter ID law in 2017 because it was designed to “target African-Americans with almost surgical precision.”
As an example, the most recently confirmed nominee, Cory Wilson, was a vocal proponent of voter ID laws like North Carolina’s. He claimed that fears of voter suppression were “poppycock” and criticized civil rights organizations like the ACLU as “rent-a-mobs” for fighting to defend access to the polls. Wilson now sits on the U.S. Court of Appeals for the Fifth Circuit.
Andrew Brasher, confirmed earlier this year to the U.S. Court of Appeals for the Eleventh Circuit, had filed an amicus brief encouraging the Supreme Court to gut the Voting Rights Act. He had previously defended Alabama’s law prohibiting previously incarcerated people from voting, which disenfranchised nearly 300,000 Alabamians. It was the Eleventh Circuit that imposed the stay allowing Florida’s law to be imposed that the Supreme Court maintained this week.
Voting is the foundation of democracy, but individuals who want to make it harder are using all three branches of the government to do so. From President Trump’s invalid fear-mongering over mail-in ballots to laws like Florida’s and court orders upholding them, the right to vote is on perilously thin ice.