A divided Supreme Court declined Thursday to stop a Florida law about felon voting rights, a decision that could leave tens of thousands of people without clarity about whether they are eligible to vote in the state’s Aug. 18 primary election.
The high court’s decision is the fourth ahead of the 2020 election that cuts against access to the ballot — adding to decisions about elections in Wisconsin, Texas and Alabama — and it drew sharp criticism from three justices on the court’s liberal wing.
“This Court’s inaction continues a trend of condoning disfranchisement,” Justice Sonia Sotomayor wrote in a dissent, which was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
The Florida law requires prior felons to pay all outstanding fines and fees from their criminal sentences before they can reestablish their right to vote. The state’s voters had approved a constitutional amendment to allow previous felons to regain the right to vote, but then the state’s Republican-led Legislature passed a law with the financial requirement.
A federal district court judge determined that such a pay-to-vote system creates an unconstitutional barrier to voting based on whether the felons had the ability to pay, in part because the state gives those felons inconsistent information and the state’s records on what they owe are incomplete and unreliable.
The district court judge blocked the state from implementing the law. But on July 1, the U.S. Court of Appeals for the 11th Circuit lifted that injunction and allowed the state to enforce the controversial law ahead of a July 20 registration deadline for the primary election.
Court declines request
The Supreme Court on Thursday declined a request from voter rights groups to undo the 11th Circuit’s decision, and the majority gave no explanation for doing so.
Sotomayor took seven pages to describe why she disagreed, writing that the 11th Circuit had added “confusion” and “voter chill” that the Supreme Court’s precedents say the justices should avoid in elections.
Sotomayor pointed out that the state still needed to screen 85,000 registrations, which the district court found would take officials six years, and tens of thousands of Floridians had already registered to vote when the law was blocked. They will remain on the voter rolls.
“Yet because of the Eleventh Circuit’s decision, these voters 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,” Sotomayor wrote.
The Supreme Court’s inaction, Sotomayor added, “prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”
The case remains at the 11th Circuit, which will hear arguments on the same day as Florida’s primary election.
Election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote on his blog that the decision affects many potential voters and could be consequential for the outcome of the election in a perennial swing state.
“But this case is even more important for what it says about the Court’s failure to protect voting rights in a pandemic,” Hasen wrote. “This is a consistent pattern at the Supreme Court.”
Continuing a trend
The court’s conservatives have sided against voters now in emergency election-related litigation in every election case this season, while the court’s liberals have dissented, Hasen wrote.
In April, the Supreme Court halted a lower court’s order to give Wisconsin voters an extra six days to submit absentee ballots after the primary election because of the COVID-19 pandemic.
In June, the Supreme Court denied a request from Texas Democrats to allow millions of state voters under age 65 to get no-excuse vote-by-mail ballots for the July 14 primary runoff election and the Nov. 3 general election if they feared risks of voting in person during the pandemic.
And in July, the Supreme Court allowed three Alabama counties to enforce provisions, requiring a copy of the voter’s ID and the signature of either two witnesses or a notary, to ensure there is no fraud in absentee ballots for the July 14 primary runoff election. A lower court had stopped those provisions because they might dissuade voters who also do not want to risk their health with in-person voting.