Kelvin Leon Jones v. Governor of Florida

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-12003

________________________

D.C. Docket Nos. 4:19-cv-00300-RH-MJF; 4:19-cv-00304-RH-MAF

KELVIN LEON JONES,

ROSEMARY MCCOY, et al.,

Plaintiffs-Appellees,

versus

GOVERNOR OF FLORIDA,

FLORIDA SECRETARY OF STATE,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Florida

_______________________

(September 11, 2020)

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, JILL

PRYOR, NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges.

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which

NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges, joined,

except with respect to Part III–B–2, in which only NEWSOM and LAGOA,

Circuit Judges, joined.

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WILLIAM PRYOR, Chief Judge:

Florida has long followed the common practice of excluding those who

commit serious crimes from voting. But in 2018, the people of Florida approved a

historic amendment to their state constitution to restore the voting rights of

thousands of convicted felons. They imposed only one condition: before regaining

the right to vote, felons must complete all the terms of their criminal sentences,

including imprisonment, probation, and payment of any fines, fees, costs, and

restitution. We must decide whether the financial terms of that condition violate

the Constitution.

Several felons sued to challenge the requirement that they pay their fines,

fees, costs, and restitution before regaining the right to vote. They complained that

this requirement violates the Equal Protection Clause of the Fourteenth

Amendment as applied to felons who cannot afford to pay the required amounts

and that it imposes a tax on voting in violation of the Twenty-Fourth Amendment;

that the laws governing felon reenfranchisement and voter fraud are void for

vagueness; and that Florida has denied them procedural due process by adopting

requirements that make it difficult for them to determine whether they are eligible

to vote. The district court entered a permanent injunction that allows any felon who

is unable to pay his fines or restitution or who has failed for any reason to pay his

court fees and costs to register and vote. Because the felons failed to prove a

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violation of the Constitution, we reverse the judgment of the district court and

vacate the challenged portions of its injunction.

I. BACKGROUND

Like many other States, Florida has long prohibited convicted felons from

voting. The first Constitution of Florida gave the legislature the power “to

exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or

other infamous crime.” Fla. Const. art. VI, § 4 (1838). The legislature exercised

this power to disenfranchise those convicted of an “infamous crime” shortly after

the Union admitted Florida in 1845. 1845 Fla. Laws 78. And until late 2018, the

Constitution of Florida provided without qualification that “[n]o person convicted

of a felony . . . shall be qualified to vote or hold office until restoration of civil

rights.” Fla. Const. art. VI, § 4(a) (2018).

In 2018, the people of Florida amended their constitution to restore the

voting rights of some felons. Amendment 4 began as a voter initiative that

appeared on the general election ballot in November 2018. The amendment

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.” Fla. Const. art. VI, § 4(a). It does not

apply to felons convicted of murder or a felony sexual offense. Id. § 4(a)–(b). The

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amendment passed with about 65 percent of the vote, just over the required 60-

percent threshold. See id. art. XI, § 5(e).

Shortly after Amendment 4 took effect, the Florida Legislature enacted a

statute, Senate Bill 7066, to implement the amendment. This statute defined the

phrase “[c]ompletion of all terms of sentence” in Amendment 4 to mean any

portion of a sentence contained in the sentencing document, including

imprisonment, probation, restitution, fines, fees, and costs. Fla. Stat.

§ 98.0751(2)(a). The Supreme Court of Florida later agreed with that interpretation

and ruled that the phrase “all terms of sentence” includes all financial obligations

imposed as part of a criminal sentence. Advisory Opinion to the Governor re:

Implementation of Amendment 4, 288 So. 3d 1070, 1084 (Fla. 2020).

To vote in Florida, a person must submit a registration form. The form

requires registrants to affirm that they are not a convicted felon or that, if they are,

their right to vote has been restored. Florida does not require felons to prove that

they have completed their sentences during the registration process. The State

allows felons to request an advisory opinion on eligibility before registration, and

any felon who registers in reliance on an opinion is immune from prosecution. If

the registration form is complete and the Division of Elections determines that the

registrant is a real person, it adds the person to the voter registration system. If the

State later obtains “credible and reliable” information establishing that the person

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has a felony conviction and has not completed all the terms of his sentence, the

person is subject to removal from the voter rolls. See Fla. Stat. § 98.075(5). But

any such felon is considered a registered voter, and before removal from the voter

registration system, he is entitled to notice—including “a copy of any

documentation upon which [his] potential ineligibility is based”—and a hearing, as

well as de novo judicial review of an adverse eligibility determination. Id.

§§ 98.075(7), 98.0755.

At the time of trial, Florida had received 85,000 registrations from felons

who believe they were reenfranchised by Amendment 4. State law requires that

those registrations be screened for, among other things, the voters’ failure to

complete the terms of their sentences including financial obligations. Id. § 98.0751.

Florida has yet to complete its screening of any of the registrations. Until it does, it

will not have credible and reliable information supporting anyone’s removal from

the voter rolls, and all 85,000 felons will be entitled to vote. See id. §§ 98.075(5)

and (7).

Several felons sued Florida officials to challenge the requirement that they

pay their fines, fees, costs, and restitution before regaining the right to vote.

Among other provisions, they alleged that the reenfranchisement laws violate the

Equal Protection and Due Process Clauses of the Fourteenth Amendment and the

Twenty-Fourth Amendment.

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The district court entered a preliminary injunction in favor of the felons

because it concluded they were likely to succeed on their claim under the Equal

Protection Clause. It ruled that requiring felons to complete all financial terms of

their sentences before regaining the right to vote was unconstitutional wealth

discrimination as applied to felons unable to pay the required amounts. The

preliminary injunction ordered the officials not to prevent the plaintiff felons from

registering or voting based solely on their inability to pay any outstanding financial

obligations in their sentences.

A panel of this Court affirmed the preliminary injunction on interlocutory

appeal. Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020). The panel

held that the decision to condition reenfranchisement on the completion of “all

terms of sentence” violated the Equal Protection Clause as applied to indigent

felons who cannot afford to pay their fines, fees, costs, and restitution. Id. It

reached this conclusion by applying heightened scrutiny on the ground that

Amendment 4 and Senate Bill 7066 discriminate on the basis of wealth. Id. at 817.

It also suggested in dicta that the laws may fail even rational basis review. Id. at

809, 817.

The district court certified a class and a subclass of felons for purposes of

final injunctive and declaratory relief. See Fed. R. Civ. P. 23(b)(2). The class

comprises “all persons who would be eligible to vote in Florida but for unpaid

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financial obligations.” The subclass comprises “all persons who would be eligible

to vote in Florida but for unpaid financial obligations that the person asserts the

person is genuinely unable to pay.”

Before trial, the State adopted what the district court called the “every-dollar

method” for determining when felons complete their financial terms of sentence.

Under this policy, the State credits all payments a felon makes for any obligations

related to his sentence toward the original obligations imposed in the sentence. For

example, if a felon establishes a payment plan to complete his terms of sentence,

any payments the felon makes for setting up or administering the plan also count

toward the original financial obligations imposed in the sentence. After a felon has

paid an amount equal to that imposed in his sentence, the State considers the

felon’s financial terms of sentence complete for purposes of reenfranchisement.

After a trial on the merits, the district court ruled that Amendment 4 and

Senate Bill 7066 violate the Equal Protection Clause as applied to felons who

cannot afford to complete their sentences. It applied heightened scrutiny to reach

that conclusion based on the panel decision in the earlier appeal, and it

alternatively ruled that the laws failed even rational basis review as applied to

felons who are unable to pay the required amounts. The district court also ruled

that Amendment 4 and Senate Bill 7066 impose a “tax” on voting by requiring

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felons to pay court fees and costs imposed in their sentences in violation of the

Twenty-Fourth Amendment.

The district court did not decide whether Florida’s reenfranchisement laws

violate the Due Process Clause. It stated that there was “considerable force” to the

arguments that the relevant laws are void for vagueness and deny the felons

procedural due process. It found that felons are sometimes unable to determine the

amount of financial obligations imposed in their sentences or the total amount they

have paid toward all related obligations. The amount of financial obligations

imposed in a sentence is usually clear from the judgment, which can be obtained

from the county of conviction. But many felons no longer have copies of their

judgments, and some counties may lack records for older convictions. When

judgments contain both misdemeanor and felony offenses, it may not be

immediately clear whether all financial obligations were imposed only for a

disqualifying felony offense. The district court did not decide whether these facts

established a violation of the Due Process Clause, but it stated that its remedy for

the other constitutional violations would eliminate any due process concerns.

The district court awarded declaratory and injunctive relief. It declared

Amendment 4 and Senate Bill 7066 unconstitutional insofar as they prohibit

otherwise-eligible felons who are “genuinely unable to pay” their financial

obligations from voting, require felons to pay “amounts that are unknown and

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cannot be determined with diligence” to regain their voting rights, and require any

felons “to pay fees and costs as a condition of voting.” It enjoined any defendant

from taking steps to enforce those requirements. But it did not enjoin the

requirement that felons pay “a determinable amount of fines and restitution as a

condition of voting” if they can afford to do so.

The district court also imposed new procedures to govern the registration

and voting process for felons. Its injunction required the Secretary of State to

publish a form to request an advisory opinion from the Division of Elections

regarding the existence and amount of any outstanding fines or restitution that

could render a felon ineligible to vote. The form allowed requesters to check a box

that stated, “I believe I am unable to pay the required amount.” If the Division

failed to respond to a request within 21 days and if the requester checked the box,

the injunction required that the requester be allowed to vote.

The Governor and the Secretary of State appealed. They petitioned this

Court for initial hearing en banc and moved to stay most aspects of the permanent

injunction pending appeal. We granted both requests.

II. STANDARDS OF REVIEW

We review the decision to enter a permanent injunction for an abuse of

discretion, but we review the underlying legal conclusions de novo and any factual

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findings for clear error. See Common Cause/Ga. v. Billups, 554 F.3d 1340, 1349

(11th Cir. 2009).

III. DISCUSSION

We divide our discussion in three parts. We first explain that Amendment 4

and Senate Bill 7066 do not violate the Equal Protection Clause. Next, we explain

why the laws do not impose a tax on voting in violation of the Twenty-Fourth

Amendment. Finally, we reject the arguments that the challenged laws are void for

vagueness and that Florida has denied the felons due process.

A. Amendment 4 and Senate Bill 7066 Do Not Violate the Equal Protection

Clause.

The practice of disenfranchising persons who commit serious crimes has a

long history that predates the founding of the Republic. George Brooks, Comment,

Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb.

L.J. 851, 852–53 (2005). As Judge Friendly explained, early American States may

have based the practice on the Lockean understanding that those who break the

social contract by committing a crime “have abandoned the right to participate in

further administering the compact.” Green v. Bd. of Elections, 380 F.2d 445, 451

(2d Cir. 1967). And as a practical matter, “it can scarcely be deemed unreasonable

for a state to decide that perpetrators of serious crimes shall not take part in

electing the legislators who make the laws, the executives who enforce these, the

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prosecutors who must try them for further violations, or the judges who are to

consider their cases.” Id.

When the States ratified the Fourteenth Amendment in 1868, 29 of their

constitutions permitted or required felon disenfranchisement. Richardson v.

Ramirez, 418 U.S. 24, 48 & n.14 (1974). Section 2 of the Fourteenth Amendment

expressly allows States to disenfranchise criminals without having their

representation reduced in Congress. U.S. Const. amend. XIV, § 2. Today, almost

all States disenfranchise felons in some way, although the recent trend is toward

expanding access to the franchise. Jones, 950 F.3d at 801 & nn.1–3.

Based on the express provision for felon disenfranchisement in section 2 of

the Fourteenth Amendment, the Supreme Court held in Richardson v. Ramirez that

the Equal Protection Clause in section 1 of the same amendment does not forbid

the practice. 418 U.S. at 54–56. The Court held that the Equal Protection Clause

permits States to disenfranchise all felons for life, even after they have completed

their sentences. Id. at 56. Florida largely followed this practice before the adoption

of Amendment 4. It presumptively disenfranchised felons for life upon conviction,

subject only to discretionary restoration of voting rights by executive clemency.

Jones, 950 F.3d at 802.

This appeal requires us to consider what limits the Equal Protection Clause

places on the selective restoration of felons’ voting rights. By conditioning

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reenfranchisement on the completion of all terms of sentence, Florida has decided

to restore some felons to the franchise but not others. The felons challenge the

classification Florida has drawn between felons who have completed all their terms

of sentence, including financial terms, and those who have not. They argue that

this classification violates the Equal Protection Clause as applied to felons who

have completed all other terms of sentence but cannot afford to pay their fines,

fees, costs, and restitution.

Under the Equal Protection Clause, classifications that neither implicate

fundamental rights nor proceed along suspect lines are subject to rational basis

review. See, e.g., Heller v. Doe ex rel. Doe, 509 U.S. 312, 319–20 (1993).

Whatever may be true of the right to vote generally, felons “cannot complain about

their loss of a fundamental right to vote because felon disenfranchisement is

explicitly permitted under the terms of Richardson.” Harvey v. Brewer, 605 F.3d

1067, 1079 (9th Cir. 2010) (O’Connor, J.); accord Johnson v. Bredesen, 624 F.3d

742, 746 (6th Cir. 2010); Hayden v. Paterson, 594 F.3d 150, 170 (2d Cir. 2010);

Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983). If the right of felons to vote were

fundamental, every law that distinguished between different groups of felons in

granting or denying access to the franchise would be subject to “exacting judicial

scrutiny.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 628 (1969). But

the Constitution does not put States to an all-or-nothing choice when it comes to

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deciding whether felons may vote. As our predecessor Court held decades ago, the

Constitution “grants to the states a realm of discretion in the disenfranchisement

and reenfranchisement of felons which the states do not possess with respect to

limiting the franchise of other citizens.” Shepherd v. Trevino, 575 F.2d 1110, 1114

(5th Cir. 1978).

States may restrict voting by felons in ways that would be impermissible for

other citizens. For example, no one doubts that a State could not require citizens

never convicted of a crime to serve a term of confinement or supervision to access

the franchise. Such a requirement would have “no relation to voting qualifications”

and so would be invalid under the Equal Protection Clause. Harper v. Va. Bd. of

Elections, 383 U.S. 663, 670 (1966). But States may unquestionably require felons

to complete their terms of imprisonment and parole before regaining the right to

vote. See Richardson, 418 U.S. at 55–56; Hayden, 594 F.3d at 171. The reason for

this difference is clear: requiring felons to complete their sentences is directly

related to voting qualifications because imprisonment and parole are imposed as

punishment for the crimes by which felons forfeited their right to vote.

Although States enjoy significant discretion in distributing the franchise to

felons, it is not unfettered. A State may not rely on suspect classifications in this

area any more than in other areas of legislation. But absent a suspect classification

that independently warrants heightened scrutiny, laws that govern felon

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disenfranchisement and reenfranchisement are subject to rational basis review.

Shepherd, 575 F.2d at 1114–15. Every other Circuit to consider the question has

reached the same conclusion. See Johnson, 624 F.3d at 746; Harvey, 605 F.3d at

1079; Hayden, 594 F.3d at 170; Owens, 711 F.2d at 27. Were the rule otherwise,

the “realm of discretion” States enjoy in this area would prove illusory. Shepherd,

575 F.2d at 1114.

The only classification at issue is between felons who have completed all

terms of their sentences, including financial terms, and those who have not. This

classification does not turn on membership in a suspect class: the requirement that

felons complete their sentences applies regardless of race, religion, or national

origin. Because this classification is not suspect, we review it for a rational basis

only.

In the earlier appeal from the preliminary injunction, the panel elided this

analysis and applied “some form of heightened scrutiny” on the ground that

Amendment 4 and Senate Bill 7066 invidiously discriminate based on wealth.

Jones, 950 F.3d at 817. That decision was wrong. To reiterate, Florida withholds

the franchise from any felon, regardless of wealth, who has failed to complete any

term of his criminal sentence—financial or otherwise. It does not single out the

failure to complete financial terms for special treatment. And in any event, wealth

is not a suspect classification. See, e.g., Maher v. Roe, 432 U.S. 464, 470–71

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(1977). Outside of narrow circumstances, laws that burden the indigent are subject

only to rational basis review. See M.L.B. v. S.L.J., 519 U.S. 102, 123–24 (1996).

To justify its application of heightened scrutiny, the panel relied on Supreme

Court precedents governing poll taxes, Harper, 383 U.S. 663; poverty-based

imprisonment, e.g., Bearden v. Georgia, 461 U.S. 660 (1983); and access to

judicial proceedings, e.g., Griffin v. Illinois, 351 U.S. 12 (1956). The felons ask us

to affirm the permanent injunction based on these same decisions. But none of

these precedents, alone or in combination, requires heightened scrutiny for the

decision to condition reenfranchisement on the full completion of a criminal

sentence.

Consider first Harper, which invalidated a $1.50 poll tax under the Equal

Protection Clause. This poll tax applied to the Virginia electorate generally; any

voter who wished to cast a ballot in a state election had to pay the tax. Harper, 383

U.S. at 664 n.1. Although States have the power to set voter qualifications, the

Court explained that the Equal Protection Clause “restrains the States from fixing

voter qualifications which invidiously discriminate.” Id. at 666. Because poll taxes

bear “no relation” to voter qualifications, the Court concluded that Virginia had

“introduce[d] a capricious or irrelevant factor” by requiring voters to pay the tax.

Id. at 666, 668. Under Harper, it is a per se violation of the Equal Protection

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Clause for a State to “make[] the affluence of the voter or payment of any fee an

electoral standard.” Id. at 666.

Amendment 4 and Senate Bill 7066 are markedly different from the poll tax

in Harper. They do not make affluence or the payment of a fee an “electoral

standard.” Id. They instead impose a different electoral standard: to regain the right

to vote, felons, rich and poor, must complete all terms of their criminal sentences.

Unlike the poll tax in Harper, that requirement is highly relevant to voter

qualifications. See Richardson, 418 U.S. at 55; Hayden, 594 F.3d at 171. It

promotes full rehabilitation of returning citizens and ensures full satisfaction of the

punishment imposed for the crimes by which felons forfeited the right to vote. That

criminal sentences often include financial obligations does not make this

requirement a “capricious or irrelevant factor.” Harper, 383 U.S. at 668. Monetary

provisions of a sentence are no less a part of the penalty that society imposes for a

crime than terms of imprisonment. Indeed, some felons face substantial monetary

penalties but little or no prison time.

Because the financial obligations at issue are directly related to legitimate

voter qualifications, Harper is inapplicable. The en banc Ninth Circuit rejected a

similar request to apply Harper to valid voter qualifications that impose a financial

burden on some voters. It held that “[r]equiring voters to provide documents

proving their identity is not an invidious classification based on impermissible

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standards of wealth or affluence, even if some individuals have to pay to obtain the

documents.” Gonzalez v. Arizona, 677 F.3d 383, 409 (9th Cir. 2012) (en banc)

(emphasis added), aff’d sub nom. Arizona v. Inter Tribal Council of Az., Inc., 570

U.S. 1 (2013). Like requiring voters to prove their identity, requiring felons to

complete their full criminal sentences “falls squarely within the state’s power to fix

core voter qualifications.” Id. The felons’ contrary reading of Harper would call

into question any law that made voting more expensive for some people than

others, even if the additional cost were directly tied to valid voter qualifications.

Harper also proves too much to help the felons, which is further evidence

that it does not apply. Harper held that the Virginia poll tax was unconstitutional

regardless of whether a voter could pay the tax; it did not matter whether a voter

“ha[d] $1.50 in his pocket or nothing at all, pa[id] the fee or fail[ed] to pay it.” 383

U.S. at 668. But no one doubts that the Equal Protection Clause allows Florida to

require felons who are able to complete the financial terms of their sentences to do

so. If completing the financial terms of a sentence were truly “irrelevant” to voter

qualifications, id., Florida could not require any felons to satisfy that requirement

as a condition of voting. The watered-down version of Harper that the felons

would have us apply ignores the crucial distinction between poll taxes and

Florida’s reenfranchisement law: poll taxes are never relevant to voter

qualifications, but laws that require the completion of a criminal sentence are. See

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Richardson, 418 U.S. at 55. The per se rule of Harper does not apply to voting

requirements that are related to legitimate voter qualifications, even if some voters

must pay to comply with the requirement. See Gonzalez, 677 F.3d at 409;

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 (2008) (plurality

opinion) (explaining that Harper invalidates voting restrictions that “are unrelated

to voter qualifications”); cf. Cipriano v. City of Houma, 395 U.S. 701, 702–04

(1969) (asking whether a law that gave only property taxpayers the right to vote in

certain elections was necessary to serve a compelling state interest but not applying

the per se rule of Harper).

In addition to Harper, the panel in the earlier appeal relied on two other lines

of Supreme Court precedent to apply heightened scrutiny. Jones, 950 F.3d at 817–

19. These decisions represent limited exceptions to the general rule that rational

basis review applies to claims of wealth discrimination. See M.L.B., 519 U.S. at

123–24. They do not apply here.

The first line of precedent, which culminated in the Bearden decision,

applies when the State imprisons a person by reason of his inability to pay a fine.

Bearden, 461 U.S. at 667–69; see also Tate v. Short, 401 U.S. 395, 396–98 (1971);

Williams v. Illinois, 399 U.S. 235, 240–41 (1970). Williams, Tate, and Bearden all

involved criminal defendants whose sentences included fines or restitution.

Bearden, 461 U.S. at 662–63, 667. In each decision, the defendant was unable to

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pay the required amount solely because of poverty, which led the State to impose

an additional term of imprisonment on the defendant that was not part of his

original sentence. Id. The Court explained in Bearden that “if the State determines

a fine or restitution to be the appropriate and adequate penalty for the crime, it may

not thereafter imprison a person solely because he lacked the resources to pay it.”

Id. at 667–68. But because Amendment 4 and Senate Bill 7066 do not impose an

additional term of imprisonment on felons who fail to pay their financial

obligations, they are far afield of the laws that Bearden and its predecessors

considered.

The earlier panel erroneously read these decisions to stand for the

proposition that “a state may not extend punishment”—that is,

disenfranchisement—“on account of inability to pay fines or fees.” Jones, 950 F.3d

at 818 (emphasis added). The Supreme Court has never extended Bearden beyond

the context of poverty-based imprisonment. See Kadrmas v. Dickinson Pub. Schs.,

487 U.S. 450, 461 n.* (1988) (declining to extend Bearden). And Williams, the

foundational decision in this line of precedent, stated that nothing in its holding

“limit[ed] the power of the [State] to impose alternative sanctions” besides

imprisonment on defendants who cannot satisfy the monetary terms of their

sentences. 399 U.S. at 245; accord Bearden, 461 U.S. at 671–72.

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But even if Bearden applied beyond poverty-based imprisonment, it would

not help the felons for a more fundamental reason. Amendment 4 and Senate Bill

7066 do not impose additional punishment because of a felon’s failure to pay his

fines, fees, costs, and restitution. Florida automatically disenfranchises all felons

upon conviction, and the challenged laws only lift that punishment for felons who

have completed all terms of their sentences. This case would resemble Bearden if

Florida left the right to vote intact upon conviction but then revoked the franchise

from any felons who could not pay their fines and restitution. In that scenario, the

State would have determined that its “penological interests do not require”

disenfranchisement, which would call into doubt the decision to impose

disenfranchisement solely because of a felon’s inability to pay fines and restitution.

Bearden, 461 U.S. at 670. But Florida does nothing of the kind.

The Supreme Court has also applied heightened scrutiny to laws that

condition access to certain judicial proceedings on the ability to pay. See M.L.B.,

519 U.S. at 110–16 (tracing the development of this exception to Griffin, 351 U.S.

12). But this exception to rational basis review applies only when the State makes

“access to judicial processes in cases criminal or quasi criminal in nature turn on

ability to pay.” Id. at 124 (citation and internal quotation marks omitted). And even

when the Supreme Court has extended the right of access to the courts to other

kinds of judicial proceedings, it has “felt compelled to justify even . . . slight

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extension[s] of the right.” Lewis v. Casey, 518 U.S. 343, 354 (1996). The extension

the felons seek is hardly “slight”—the challenged laws do not concern access to

judicial proceedings at all. The access-to-courts precedents are wholly inapposite.

The felons resist the conclusion that the Bearden and Griffin lines of

precedent are limited to the contexts in which they arose, but they identify no

decisions that invoke Bearden or Griffin to apply heightened scrutiny to a claim of

wealth discrimination outside those contexts. And the dissenters’ contention that

“the Supreme Court applied Griffin to the voting context in Harper,” Jordan

Dissent at 119, is plainly inaccurate. Far from “rel[ying] on Griffin to

invalidate . . . Virginia[’s] poll tax,” id., Harper cited Griffin once in passing to

support the proposition that “[l]ines drawn on the basis of wealth or

property . . . are traditionally disfavored,” Harper, 383 U.S. at 668 (citing Griffin,

351 U.S. 12). The Court did not provide even a pinpoint citation to any passage in

Griffin, much less analysis extending it to the context of voting. Id. The Supreme

Court has made clear that heightened scrutiny for claims of wealth discrimination

is the exception, not the rule. M.L.B., 519 U.S. at 123–24. Unable to fit their claim

into any existing exception, the felons rely on “nothing more than an

amalgamation” of multiple theories, each of which lacks merit on its own. Pac.

Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 452 (2009).

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We hold that rational basis review applies and overrule the contrary holding

by the panel in the earlier appeal from the preliminary injunction. Jones, 950 F.3d

at 800. Stare decisis does not counsel that we should adhere to that earlier decision.

See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1096

(11th Cir. 2017) (en banc). The doctrine of stare decisis “is at its weakest when we

interpret the Constitution.” Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020)

(internal quotation marks omitted). Because the panel interpreted the Constitution

and not a statute, only we or the Supreme Court can correct its “gravely mistaken”

reasoning. Id. That earlier decision is inconsistent with clear Supreme Court

precedent and every relevant decision of our sister circuits—indeed, it is, to our

knowledge, the only appellate decision ever to apply heightened scrutiny to felon

reenfranchisement in the absence of any suspect classification. See id. (considering

“consistency with related decisions”). And any reliance interests on that decision—

which affirmed a preliminary injunction entered earlier this year in this very

litigation—are weak. See Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019)

(rejecting “case-specific costs” as a reliance interest that can justify adhering to “an

incorrect resolution of an important constitutional question”).

A classification survives rational basis review if it is rationally related to

some legitimate government interest, Heller, 509 U.S. at 320, and two interests are

relevant here. Florida unquestionably has an interest in disenfranchising convicted

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felons, even those who have completed their sentences. See Richardson, 418 U.S.

at 56. But Amendment 4 and Senate Bill 7066 also reflect a different, related

interest. They advance Florida’s interest in restoring felons to the electorate after

justice has been done and they have been fully rehabilitated by the criminal justice

system. The policy Florida has adopted reflects the “more modern view” described

in Richardson that “it is essential to the process of rehabilitating the ex-felon that

he be returned to his role in society as a fully participating citizen when he has

completed the serving of his term.” Id. at 55. The twin interests in disenfranchising

those who disregard the law and restoring those who satisfy the demands of justice

are both legitimate goals for a State to advance. See id. at 55–56. The question is

whether the classification Florida has adopted between felons who have completed

their full sentences and those who have not is rationally related to those interests.

The dissenters suggest that Florida’s only possible interests are in

punishment and debt collection, Jordan Dissent at 145–49, and that narrow view

leads them to conclude that Senate Bill 7066 is irrational, id. at 149. The dissenters

dismiss our view that Florida also has an interest in restoring rehabilitated felons to

the electorate as “an ipse dixit . . . [that] merely restates what the law does.” Id. at

141. But it is not unusual for a policy to directly achieve an objective itself. See

Adams ex. rel. Kasper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, __ (11th Cir.

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2020) (W. Pryor, C.J., dissenting). And we do not think it is unnatural to find state

interests broader than punishment and revenue-raising in a reenfranchisement law.

In deciding whether Florida’s classification is rational, we are mindful that

our review is extremely narrow. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307,

314 (1993) (“This standard of review is a paradigm of judicial restraint.”). We

must uphold the classification unless the felons “negative every conceivable basis

which might support it.” Id. at 315 (internal quotation marks omitted). For this

reason, the Supreme Court “hardly ever strikes down a policy as illegitimate under

rational basis scrutiny.” Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018). In the rare

instances when it has done so, “a common thread has been that the laws at issue

lack any purpose other than a ‘bare desire to harm a politically unpopular group.’”

Id. (alteration adopted) (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534

(1973)); see also Romer v. Evans, 517 U.S. 620, 634 (1996); City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 446–47, 450 (1985). There is no evidence that

any kind of animus toward indigent felons motivated Florida voters and legislators

to condition reenfranchisement on the completion of all terms of sentence. After

all, the voters of Florida made it easier for the vast majority of felons—who are

disproportionately indigent—to regain their voting rights. So we must uphold their

choice if there is any conceivable basis that could justify it. See Heller, 509 U.S. at

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319 (“[R]ational-basis review . . . is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices.” (internal quotation marks omitted)).

Under this deferential standard, we readily conclude that Florida’s

classification survives scrutiny. The people of Florida could rationally conclude

that felons who have completed all terms of their sentences, including paying their

fines, fees, costs, and restitution, are more likely to responsibly exercise the

franchise than those who have not. See Green, 380 F.2d at 451. If a State may

decide that those who commit serious crimes are presumptively unfit for the

franchise, id., it may also conclude that those who have completed their sentences

are the best candidates for reenfranchisement.

To be sure, the line Florida drew might be imperfect. The classification may

exclude some felons who would responsibly exercise the franchise and include

others who are arguably less deserving. But Florida was not required “to draw the

perfect line nor even to draw a line superior to some other line it might have

drawn.” Armour v. City of Indianapolis, 566 U.S. 673, 685 (2012). The

Constitution requires only “a rational line.” Id. The line between felons who have

completed their sentences and those who have not easily satisfies that low bar.

The classification is rational for other reasons too. Before extending the

franchise to even more felons, Florida may have wished to test the waters by

reenfranchising only those who complete their full sentences. Under rational basis

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review, “reform may take one step at a time.” Williamson v. Lee Optical of Okla.,

Inc., 348 U.S. 483, 489 (1955). The State need not “strike at all evils at the same

time or in the same way,” Semler v. Or. State Bd. of Dental Exam’rs, 294 U.S. 608,

610 (1935), and “[a] statute is not invalid under the Constitution because it might

have gone farther than it did,” Roschen v. Ward, 279 U.S. 337, 339 (1929).

Although “every reform that benefits some more than others may be criticized for

what it fails to accomplish,” that reality does not invalidate the measure under the

Equal Protection Clause. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

39 (1973).

Confusion about Florida’s voter registration system and the record before

the district court leads the dissenters to conclude that Senate Bill 7066 “does not

‘rationally’ further the goal of re-enfranchising felons,” a goal the dissent

acknowledges only “[f]or the sake of argument.” Jordan Dissent at 141, 143. The

dissenters purport to prove that conclusion with a smoking gun: “the fact that

Florida had restored voting rights to 0 felons as of the time of trial.” Id. at 143. But

that “fact” is not true. Once a felon submits a facially complete registration form

and Florida determines that he is a real person, he is added to the voting rolls as a

registered voter; he is not then required to prove that he has completed his

sentence. To be sure, Florida attempts to identify “registered voters” with felony

convictions whose rights have not been restored and, after securing “credible and

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reliable” information, initiates the process of removing them from the voter

registration system. Fla. Stat. §§ 98.075(5) and (7); see also id. at § 98.0751(3)

(governing administration of § 98.075(5) in the light of Amendment 4). But at the

time of trial, 85,000 felons had submitted facially complete voter registration

forms, and Florida had not yet been able to find information justifying the removal

of any of them from the voting rolls. Until it does, all 85,000 are entitled to vote.

The dissenters’ contention that state officials’ implementation of Amendment 4 has

prevented any felons from benefitting from the amendment is false. Eighty-five

thousand felons are now registered voters, and each one will remain so unless

Florida meets its self-imposed burden of gathering the information necessary to

prove his ineligibility. Our dissenting colleagues quibble with our assertion that all

of these registered voters are “entitled to vote,” see Jordan Dissent at 144; Martin

Dissent at 94 n.3, but they point to no evidence that any of the 85,000 voters will

be unable to cast a ballot in an upcoming election.

The felons argue that Florida rendered its classification irrational by

adopting the “every dollar” method for determining when a sentence is complete,

but this argument misunderstands rational basis review. If the relationship between

a State’s interest and its means of achieving it is “at least debatable,” then it

survives scrutiny. Gary v. City of Warner Robins, 311 F.3d 1334, 1339 (11th Cir.

2002) (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)).

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The “every dollar” policy is at least arguably related to Florida’s interest in

reenfranchising only those felons who have paid their debt to society and been

fully rehabilitated. It ensures that no felons will be reenfranchised unless they have

paid amounts equal to those imposed in their criminal sentences. Florida could

rationally define “completion” of a sentence in this manner to help ensure that

felons who enrolled in payment plans pay no more to complete their sentences than

felons who paid their fines, fees, costs, and restitution immediately.

The reasoning of the district court and the panel in the earlier appeal bore no

resemblance to rational basis review. Their first error was to assess the rationality

of Florida’s classification by asking only whether it was rational to prohibit these

plaintiffs from voting. See Jones, 950 F.3d at 813 (“Florida’s continued

disenfranchisement of these seventeen plaintiffs is not rationally related to any

legitimate governmental interest.” (emphasis added)); Jones v. DeSantis, __ F.

Supp. 3d __, __, 2020 WL 2618062, at *15 (N.D. Fla. 2020) (claiming that a

proper approach to rational-basis scrutiny allows a court to “consider[] the

rationality of a statute as applied to particular plaintiffs without opining on its

rationality more generally.” (quoting Jones, 950 F.3d at 814)). A legislative

classification “may be based on rational speculation unsupported by evidence.”

Beach Commc’ns, 508 U.S. at 315. For that reason, a law may be rational “even if

in a particular case [it] appears to discriminate irrationally.” In re Wood, 866 F.2d

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1367, 1370 (11th Cir. 1989); see also Beller v. Middendorf, 632 F.2d 788, 808 n.20

(9th Cir. 1980) (Kennedy, J.) (“Nearly any statute which classifies people may be

irrational as applied in particular cases.”).

The dissenters repeat the error of the district court and the panel in the

earlier appeal. And they accuse us of ignoring the Supreme Court’s decision in

City of Cleburne, see Jordan Dissent at 135–36, which they describe as applying

rational-basis review to affirm a judgment “insofar as it [held an] ordinance invalid

as applied in this case,” City of Cleburne, 473 U.S. at 448. But applying rational-

basis review in a “case” is not the same as applying it to the unique circumstances

of a specific plaintiff. After the passage cited by the dissenters, the Supreme Court

in City of Cleburne evaluated whether the city’s proffered reasons for requiring a

permit for a group home of people with intellectual disabilities but not for

comparable facilities rationally reflected relevant differences between “the

mentally retarded as a group” and others. Id. at 448–50 (emphasis added). The

Court did not focus on factors unique to the particular disabled people involved in

the appeal—City of Cleburne does not justify the dissenters’ narrow focus on

whether Florida’s classification applies rationally to the particular plaintiffs in this

appeal.

The second error of the district court and the panel in the earlier appeal was

to assume that the law would be rational if most felons could eventually pay their

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fines, fees, costs, and restitution but irrational if a substantial number could not.

See Jones, 950 F.3d at 814. The proportion of felons who can eventually complete

their sentences has no bearing on whether it is rational to conclude that felons who

do complete their sentences—whatever their number—are generally more

deserving of reenfranchisement than those who do not. The district court and the

panel in the earlier appeal reached a contrary conclusion only by disregarding

settled law. See Beach Commc’ns, 508 U.S. at 315; United States v. Castillo, 899

F.3d 1208, 1213 (11th Cir. 2018). The dissenters echo that flawed reasoning when

they contend that any law that would leave a substantial portion of felons unable to

benefit from Amendment 4 is “a nullification of the will of the electorate.” Jill

Pryor Dissent at 200. But the face of the amendment makes clear that Florida

voters do not share the dissenters’ view that it is unjust to tell some criminals that

they have incurred debts to society that will never be repaid. See Fla. Const. art.

VI, § 4(b) (denying automatic reenfranchisement to felony sex offenders and

murderers). In fact, it is the dissenters who would nullify the will of the Florida

electorate by reenfranchising felons whom voters clearly would not have expected

to benefit from Amendment 4, including a named plaintiff who jointly owes $59

million in restitution for conspiracy to commit insurance and wire fraud. Florida’s

voters intended only to reenfranchise felons who have been fully rehabilitated, and

Senate Bill 7066 drew a rational line in pursuit of that goal.

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B. Amendment 4 and Senate Bill 7066 Do Not Violate the Twenty-Fourth

Amendment.

Ratified in 1964, the Twenty-Fourth Amendment to the Constitution forbids

taxes on voting in federal elections:

The right of citizens of the United States to vote in any primary or other

election for President or Vice President, for electors for President or

Vice President, or for Senator or Representative in Congress, shall not

be denied or abridged by the United States or any State by reason of

failure to pay any poll tax or other tax.

U.S. Const. amend. XXIV, § 1. The felons argue that Florida has denied them the

right to vote by reason of their failure to pay court fees and costs imposed in their

criminal sentences, which they contend are an “other tax” under the Twenty-Fourth

Amendment. They do not argue that fines and restitution are taxes, and for good

reason. Fines, which are paid to the government as punishment for a crime, and

restitution, which compensates victims of crime, are not taxes under any fair

reading of that term.

The felons’ argument presents two questions: first, whether fees and costs

imposed in a criminal sentence are taxes under the Twenty-Fourth Amendment;

and second, if fees and costs are taxes, whether Florida has denied the right to vote

“by reason of” the failure to pay fees and costs.

1. Court Costs and Fees Are Not Taxes.

The term “tax” is a broad one, but it does not cover all monetary exactions

imposed by the government. The Supreme Court has long distinguished taxes from

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penalties in a variety of contexts. See, e.g., United States v. Constantine, 296 U.S.

287, 293–94 (1935); United States v. La Franca, 282 U.S. 568, 572 (1931). This

distinction was well established when the Twenty-Fourth Amendment was

adopted, and it continues to define the outer limits of the term “tax” today. See

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563, 567–70 (2012) (holding,

under the canon of constitutional avoidance, that a federal law levied a tax because

it could reasonably be read not to impose a penalty). In short, if a government

exaction is a penalty, it is not a tax.

“The difference between a tax and a penalty is sometimes difficult to

define,” Child Labor Tax Case, 259 U.S. 20, 38 (1922), but at least one principle is

clear. The Supreme Court has explained in multiple contexts that “if the concept of

penalty means anything, it means punishment for an unlawful act or omission.”

Nat’l Fed’n of Indep. Bus., 567 U.S. at 567 (quoting United States v. Reorganized

CF & I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996)); see also La Franca,

282 U.S. at 572. Court fees and costs imposed in a criminal sentence fall within

this definition: they are part of the State’s punishment for a crime. They are not

taxes.

Several features of the costs and fees at issue make clear that they are

punishment for criminal wrongdoing. Most importantly, they are part of a

defendant’s criminal sentence—“the punishment imposed on a criminal

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wrongdoer.” Sentence, Black’s Law Dictionary (11th ed. 2019). Florida caselaw

holds that the costs of prosecution are criminal punishment for purposes of double

jeopardy; they cannot be increased after a defendant begins serving his sentence.

Martinez v. State, 91 So. 3d 878, 879–80 (Fla. Dist. Ct. App. 2012). And if a felon

cannot pay a financial obligation imposed in his sentence, the sentencing court may

“convert the statutory financial obligation into a court-ordered obligation to

perform community service,” Fla. Stat. § 938.30(2), a provision that makes little

sense if costs and fees exist primarily to raise revenue and not to punish and

rehabilitate offenders.

Like fines and restitution, fees and costs are also linked to culpability.

Florida imposes heftier costs on felony offenders than those convicted of

misdemeanors or criminal traffic offenses, and it does not impose any fees and

costs if a criminal case ends in an acquittal or a nolle prosequi. See id.

§§ 938.05(1), 939.06(1). Florida imposes fees and costs only on those who are

convicted of a crime or who have their adjudication of guilt withheld, a process

that allows the court to suspend the imposition of sentence if it determines “that the

defendant is not likely again to engage in a criminal course of conduct and that the

ends of justice and the welfare of society do not require that the defendant

presently suffer the penalty imposed by law.” Id. § 948.01(2). But even felony

defendants who have their adjudication of guilt withheld are subject to the punitive

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and rehabilitative powers of the sentencing court: they must complete a term of

probation and may have to pay both fines and costs. See State v. Tribble, 984 So.

2d 639, 640–41 (Fla. Dist. Ct. App. 2008); Clinger v. State, 533 So. 2d 315, 316–

17 (Fla. Dist. Ct. App. 1988). The punitive nature of fees and costs is no less

applicable to defendants who plead nolo contendere because that plea, like a guilty

plea, results in a conviction and “gives the court the power to punish.” Vinson v.

State, 345 So. 2d 711, 715 (Fla. 1977).

The Supreme Court has relied on similar features to conclude that exactions

that bore a far greater resemblance to taxes than court costs do were in fact

penalties. For example, the Court held that a “so-called tax” on the possession of

illegal drugs was in reality criminal punishment in part because the exaction was

“conditioned on the commission of a crime.” Dep’t of Revenue of Mont. v. Kurth

Ranch, 511 U.S. 767, 781 (1994); see also Nat’l Fed’n of Indep. Bus., 567 U.S. at

566 (relying on Kurth Ranch to distinguish taxes from penalties). “That condition,”

the Court explained, was “significant of penal and prohibitory intent rather than the

gathering of revenue.” Kurth Ranch, 511 U.S. at 781 (internal quotation marks

omitted). The Court relied on similar reasoning to hold that a $1,000 excise

imposed only on those who violated state liquor laws was a penalty, not a tax.

Constantine, 296 U.S. at 295.

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The functional analysis used in National Federation of Independent Business

supports our conclusion that the fees and costs in this appeal are penalties, not

taxes. The Court explained that exactions imposed only on those who knowingly

violate the law are suggestive of a penalty, not a tax. 567 U.S. at 565–66. The

Court also stressed that using a “criminal prosecution” to collect an exaction is

“suggestive of a punitive sanction.” Id. at 566. And the Court reasoned that an

exaction is likely a tax when the behavior to which it applies is lawful. Id. at 568

(“Neither the Act nor any other law attaches negative legal consequences to not

buying health insurance, beyond requiring a payment to the IRS. . . . [I]f someone

chooses to pay rather than obtain health insurance, they have fully complied with

the law.”). Here, by contrast, fees and costs are imposed only on those who,

following criminal prosecution for their unlawful acts, are subject to the punitive

and rehabilitative powers of a Florida court. The characteristic features of penalties

that the Court noted were absent in National Federation of Independent Business

are present here.

To be sure, one purpose of fees and costs is to raise revenue, but that does

not transform them from criminal punishment into a tax. Every financial penalty

raises revenue for the government, sometimes considerable revenue. In addition to

costs and fees, Florida uses criminal fines to fund both its courts and general

government operations, but that additional purpose does not make them taxes. See

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Fla. Stat. § 142.01(1) (establishing the “fine and forfeiture fund” for use “in

performing court-related functions”); id. § 775.083(1) (directing that criminal fines

be deposited in the fine and forfeiture fund); id. § 316.193(2)(a) (directing the clerk

to remit portions of fines for driving under the influence “to the Department of

Revenue for deposit into the General Revenue Fund”). Nor does the fact that many

fees and costs do not vary based on the severity of the offense render them

nonpunitive. Some punishments, like disenfranchisement, are imposed on all

felons alike regardless of the severity of their crimes. Because court costs and fees

are legitimate parts of a criminal sentence—that is, part of the debt to society that

felons must pay for their crimes—there is no basis to regard them as a tax. We hold

that fees and costs imposed in a criminal sentence are not taxes under the Twenty-

Fourth Amendment, and we reject the felons’ Twenty-Fourth Amendment

argument on that basis.

2. Florida Does Not Deny the Right to Vote “by Reason of” Failure to Pay a

Tax.

Even if fees and costs were taxes, the felons’ reliance on the Twenty-Fourth

Amendment would be misplaced. The Twenty-Fourth Amendment provides that

“[t]he right . . . to vote . . . shall not be denied or abridged . . . by reason of failure

to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1. A financial

obligation that indirectly burdens the right to vote is permissible under the Twenty-

Fourth Amendment when the State has a constitutionally legitimate reason for

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imposing the voter qualification that creates the indirect burden. But before

explaining why, it is necessary to address—and reject—an argument that the State

makes.

In addition to its argument that fees and costs are not taxes, the State

contends that the Twenty-Fourth Amendment “does not apply when the right to

vote has been constitutionally forfeited.” Quoting the Ninth Circuit’s opinion in

Harvey v. Brewer, the State contends that because disenfranchised felons have

“lost their right to vote, they . . . have no cognizable Twenty-Fourth Amendment

claim until their voting rights are restored.” 605 F.3d at 1080; see also Johnson,

624 F.3d at 751. The State maintains that Amendment 4 and Senate Bill 7066

provide only “requirements for reenfranchisement,” which the Twenty-Fourth

Amendment does not govern.

The implication of that logic for the other voting-rights amendments shows

why the State’s argument is plainly wrong. If the voting-rights amendments protect

only those with a pre-existing right to vote and do not apply to so-called

“reenfranchisement laws,” then a State would not violate the Fifteenth Amendment

by denying that right to reenfranchisement only to black felons. A State also would

not violate the Nineteenth Amendment by denying the right only to female felons.

And it would not violate the Twenty-Sixth Amendment by denying the right only

to younger felons. According to the State’s logic, none of the voting-rights

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amendments would have anything to say about discriminatory “reenfranchisement”

laws, because reenfranchisement is “an act of grace” extended to a class that has no

cognizable rights. To be sure, the State denied that implication of its position at

oral argument, see Oral Argument at 7:00–8:00 (Aug. 18, 2020) (conceding that

discriminatory reenfranchisement laws would violate the Fifteenth, Nineteenth,

and Twenty-Sixth Amendments), and for good reason. Any of the discriminatory

reenfranchisement laws described above would clearly violate the voting-rights

amendments.

Consider the Supreme Court’s treatment of literacy tests. Some States denied

illiterate persons the right to vote after the ratification of the Fifteenth Amendment,

a practice the Supreme Court held was then lawful. See Guinn v. United States, 238

U.S. 347, 366 (1915); Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45,

50–53 (1959). But even though States were free to deny the right to vote to all

illiterate persons, the Fifteenth Amendment forbade them to discriminate within

the class of illiterate non-voters by exempting only white citizens from literacy

tests. See Guinn, 238 U.S. at 364–65.

In the same way, States may deny all felons the right to vote but may not,

consistent with the Twenty-Fourth Amendment, discriminate among felons by

extending the franchise to some felons while denying it to others by reason of their

failure to pay a tax. The Twenty-Fourth Amendment, like the Fifteenth and

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Nineteenth Amendments before it and the later Twenty-Sixth Amendment, applies

whenever the State sets a voter qualification that extends the right to vote to some

persons but denies it to others on a prohibited basis. The Twenty-Fourth

Amendment plainly applies to felon reenfranchisement. The only remaining

question is whether Florida denies some felons the right to vote “by reason of”

their failure to pay a poll tax or other tax.

The felons argue that the phrase “by reason of” requires “the simple and

traditional standard of but-for causation,” which asks whether “a particular

outcome would not have happened ‘but for’ the purported cause.” Bostock v.

Clayton County, 140 S. Ct. 1731, 1739 (2020) (internal quotation marks omitted).

Florida law violates the Twenty-Fourth Amendment, the felons argue, because

Amendment 4 and Senate Bill 7066 make their failure to pay court fees and costs a

but-for cause of the denial of their right to vote. The problem with this argument is

that the text of the Twenty-Fourth Amendment does not establish a but-for causal

relationship between the failure to pay a tax and the denial of the right to vote.

To be sure, “[t]he phrase ‘by reason of’ denotes some form of causation.”

Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1842 (2018) (citing Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). But the phrase is not self-

defining, and dictionary definitions are of limited value because they tend to define

“because of,” “by reason of,” and “on account of” only in circular reference to one

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another. See, e.g., Account, Webster’s New International Dictionary (2d ed. 1959)

(defining “on account of” as “[f]or the sake of; by reason of; because of”); Reason,

Oxford English Dictionary (1933) (defining “[b]y . . . reason of” as “on account

of”). Indeed, the Supreme Court has explained that the phrase “by reason of” can

bear meanings that range from but-for cause, Holmes v. Sec. Inv. Prot. Corp., 503

U.S. 258, 265–66 (1992), all the way to sole cause, Husted, 138 S. Ct. at 1842–43.

Absent a more specific definition in the text, we must look to context to determine

whether “by reason of” in the Twenty-Fourth Amendment refers to but-for cause,

sole cause, or some other relationship. See id. at 1842 (citing Holmes, 503 U.S. at

265–68); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 2, at 56 (2012) (“[W]ords are given meaning by

their context . . . .”). And the context of the Twenty-Fourth Amendment forecloses

the possibility that but-for causation is the relevant standard.

The most relevant context is the text of the other voting-rights amendments

to the Constitution. The felons acknowledge this reality. They point to the fact that

the “Twenty-Fourth Amendment’s text mirrors the Fifteenth, Nineteenth, and

Twenty-Sixth Amendments” as evidence that the Twenty-Fourth Amendment, like

the other amendments, imposes a categorical ban on certain voting qualifications—

a ban that is “not subject to exceptions in the rights-restoration context.”

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The felons are correct in one respect: just as it would plainly violate the

other amendments to reenfranchise only white, male, or 30-year old felons, it

would also violate the Twenty-Fourth Amendment to reenfranchise only felons

who pay a poll tax—that is, a tax on the franchise itself. But the felons overlook

one important difference between the Twenty-Fourth Amendment and the other

amendments: the language it uses to describe the relationship between the denial of

the right to vote and the prohibited basis of that denial.

Consider the text of all four voting-rights amendments. The Fifteenth

Amendment says that the right to vote may not be denied “on account of race,

color, or previous condition of servitude.” U.S. Const. amend. XV, § 1 (emphasis

added). The Nineteenth Amendment says that this right may not be denied “on

account of sex.” Id., amend. XIX (emphasis added). And the Twenty-Sixth

Amendment says that it may not be denied to citizens age 18 or older “on account

of age.” Id., amend. XXVI, § 1 (emphasis added). In contrast, the Twenty-Fourth

Amendment alone uses the phrase “by reason of” instead of “on account of.”

A material variation in language suggests a variation in meaning. See Scalia

& Garner, Reading Law § 25, at 170–73; see also Akhil Reed Amar,

Intratextualism, 112 Harv. L. Rev. 747, 761 (1999) (“[T]he same (or very similar)

words in the same document should, at least presumptively, be construed in the

same (or a very similar) way. But the flip side of the intratextual coin is that when

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two (or more) clauses feature different wording, this difference may also be a clue

to meaning, and invite different construction of the different words.”). So the text

of the Constitution creates an inference that the right to vote stands in a different

relationship to race, sex, and age than it does to the nonpayment of taxes. To

understand this difference in meaning, one should begin with the meanings of the

Fifteenth and Nineteenth Amendments, both of which were well established when

the Twenty-Fourth Amendment was ratified. With an understanding of those

amendments in place, evidence surrounding the ratification of the Twenty-Fourth

Amendment makes clear that the difference in language reflects a difference in

meaning.

The Fifteenth and Nineteenth Amendments are best understood to forbid any

voter qualification that makes race or sex a but-for cause of the denial of the right

to vote. The relationship between the right to vote and a person’s race is the most

thoroughly discussed in Supreme Court precedent, and the but-for causation

principle is clear in that context. Race is never a permissible criterion for

determining the scope of the franchise. And this understanding extends to the

Nineteenth Amendment’s prohibition of sex-based voter qualifications.

The Fifteenth Amendment’s prohibition on accounting for race as a voter

qualification is absolute. This prohibition is powerful enough to “remove . . . or

render inoperative” any suffrage provision in a state constitution that refers to race,

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even in the absence of implementing legislation by Congress. Neal v. Delaware,

103 U.S. 370, 389 (1880); accord Guinn, 238 U.S. at 363. The amendment has

similar bite even when States impose discriminatory voting qualifications by

facially neutral means. In Guinn, the Supreme Court invalidated an amendment to

the Constitution of Oklahoma that created a literacy test for voting but exempted

from the test any person who was eligible to vote before the ratification of the

Fifteenth Amendment. 238 U.S. at 364–67. Although the state constitution

“contain[ed] no express words” limiting the franchise “on account of race, color, or

previous condition of servitude,” the grandfather clause “inherently [brought] that

result into existence,” which violated the Fifteenth Amendment. Id. at 364–65. As

the Supreme Court explained in another early decision interpreting the Fifteenth

Amendment: “If citizens of one race having certain qualifications are permitted by

law to vote, those of another having the same qualifications must be.” United

States v. Reese, 92 U.S. 214, 218 (1875). If changing a voter’s race changes his

eligibility to vote, the law is invalid. Cf. Bostock, 140 S. Ct. at 1739.

To be sure, our nation failed to achieve the egalitarian goal of the Fifteenth

Amendment to any significant degree until Congress used its power under

section 2 of the amendment to enact the Voting Rights Act of 1965. See South

Carolina v. Katzenbach, 383 U.S. 301, 308–09 (1966). But the amendment

established a powerful baseline: States must set voter qualifications without any

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regard to race. The Fifteenth Amendment does not subject race-based voter

qualifications to strict scrutiny—they are per se unconstitutional. See Rice v.

Cayetano, 528 U.S. 495, 511–12 (2000). It ensures that any argument that a race-

based voter qualification is “tied rationally to the fulfillment” of an important

government interest, id. at 548 (Ginsburg, J., dissenting) (internal quotation marks

omitted), falls on deaf ears. “There is no room under the Amendment for the

concept that the right to vote in a particular election can be allocated based on

race.” Id. at 523 (majority opinion). If a State acts in any way to make race relevant

to voter qualifications, either facially or with a discriminatory purpose, it violates

the Fifteenth Amendment. See Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481

(1997) (citing City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality

opinion)).

The Nineteenth Amendment forbids the use of sex as a voter qualification in

the same way. The Supreme Court has discussed the Nineteenth Amendment in

detail only twice—once in a decision upholding the amendment against a challenge

to its validity, Leser v. Garnett, 258 U.S. 130, 136 (1922), and once in a decision

upholding a poll tax that included an exception for nonvoting women, Breedlove v.

Suttles, 302 U.S. 277, 279–80 (1937), overruled by Harper, 383 U.S. 663. In both

decisions, the Court confirmed that the Nineteenth Amendment operates just like

the Fifteenth Amendment. The Court explained in Leser that the Nineteenth

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Amendment “is in character and phraseology precisely similar to the Fifteenth.”

258 U.S. at 136. And in Breedlove, the Court stated that the Nineteenth

Amendment, like the Fifteenth, is an absolute and self-enforcing prohibition on

discriminatory classifications in voting. 302 U.S. at 283 (“[The Nineteenth

Amendment] applies to men and women alike and by its own force supersedes

inconsistent measures, whether federal or state.” (citing Leser, 258 U.S. at 135)).

By the time Congress proposed the Twenty-Fourth Amendment in 1962, the

Fifteenth and Nineteenth Amendments, which provided that the right to vote could

not be denied or abridged “on account of race” or “on account of sex,” were clearly

and correctly understood to prevent the States from making a person’s eligibility to

vote turn in any way on race or sex. Under the Fifteenth and Nineteenth

Amendments, a but-for-causation test like the one the felons propose accurately

reflects the constitutional rule. When a State sets a voter qualification that would

allow a person to vote but for the person’s race or sex, it violates the Constitution.

But the Twenty-Fourth Amendment did not adopt the language of the

Fifteenth and Nineteenth Amendments wholesale. The Twenty-Fourth Amendment

prohibits States from denying the right vote “by reason of” the failure to pay a tax,

not “on account of” it. If possible, that different language should be given a

different meaning. Interpreting the phrase “by reason of” only as a synonym for

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“on account of” violates well-established principles of textual interpretation. See

Scalia & Garner, Reading Law § 25, at 170–73.

Ample evidence supports the conclusion that “by reason of” in the Twenty-

Fourth Amendment does not refer to but-for causation. To begin, the only Supreme

Court decision to apply the amendment does not reflect a but-for causal standard.

In Harman v. Forssenius, decided only a year after ratification of the Twenty-

Fourth Amendment, the Court considered a Virginia law enacted in anticipation of

the amendment that allowed voters to forego payment of their poll taxes and still

vote in federal elections if they filed a “certificate of residence” at least six months

before the election. 380 U.S. 528, 531–32 (1965). Because the Twenty-Fourth

Amendment “nullifies sophisticated as well as simple-minded modes of impairing

the right guaranteed” and the certificate requirement “perpetuat[ed] . . . the

disenfranchising characteristics of the poll tax which the Twenty-fourth

Amendment was designed to eliminate,” the Supreme Court held that the

certificate requirement was an unconstitutional substitute for the poll tax. Id. at

540–42 (internal quotation marks omitted). The Harman Court based its decision

on the rule that a State may not impose “a material requirement solely upon those

who refuse to surrender their constitutional right to vote in federal elections

without paying a poll tax.” Id. at 541.

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If the felons are correct that the Twenty-Fourth Amendment prohibits States

from setting voter qualifications that make the failure to pay a tax a but-for cause

of the denial of the right to vote, then the rule Harman announced was

unexpectedly narrow. Under the law challenged in Harman, voters were turned

away if they failed to either pay a poll tax or file a certificate of registration—each

failure was a but-for cause of the denial of the right to vote. So if but-for causation

were the relevant standard, most of the analysis in Harman, and the entire rule

quoted above, would have been unnecessary. The Court could have decided the

case by pointing out that the failure to pay a tax was part of the causal chain that

led to the denial of the right to vote. So Harman suggests that the Twenty-Fourth

Amendment requires a tighter relationship between nonpayment of a tax and denial

of the right to vote than but-for causation.

Other settled principles confirm that the Twenty-Fourth Amendment does

not adopt a but-for causal standard. Richardson allows States to disenfranchise all

felons upon conviction; it makes no exception for felons who were convicted

because they failed to pay their taxes. 418 U.S. at 56. And the Twenty-Fourth

Amendment has never been understood to prohibit States from disenfranchising

tax felons, even if the failure to pay taxes is a but-for cause of their

disenfranchisement. See generally Sloan G. Speck, Comment, “Failure to Pay Any

Poll Tax or Other Tax”: The Constitutionality of Tax Felon Disenfranchisement,

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74 U. Chi. L. Rev. 1549 (2007). The en banc Ninth Circuit has similarly held that

requiring voters to present identification at the polls does not violate the Twenty-

Fourth Amendment even though obtaining identification “may have a cost.”

Gonzalez, 677 F.3d at 407. That conclusion is consistent with the plurality opinion

in Crawford v. Marion County Election Board, which concluded that Indiana’s

voter-identification law was facially constitutional, 553 U.S. at 204, even as it

acknowledged that obtaining valid identification could involve paying between $3

and $12 to obtain a copy of one’s birth certificate, id. at 198 n.17.

Because the phrase “by reason of” cannot refer only to but-for causation, it

is necessary to consider other possible meanings. Focusing on the main word in

that phrase yields an answer: the Twenty-Fourth Amendment prohibits denials of

the right to vote for which the failure to pay a tax is not only the but-for cause, but

also the reason for the State’s action.

The word “reason” has multiple commonly used subsenses. Some of them,

of course, are closely related to but-for causation. See, e.g., Reason, Webster’s New

International Dictionary (2d ed. 1959) (“A ground or cause”). But the Twenty-

Fourth Amendment’s textual divergence from the Fifteenth, Nineteenth, and

Twenty-Sixth Amendments, together with other contextual clues, eliminates these

subsenses from consideration. Many of the other subsenses of the word “reason”

relate to the concept of justification, itself a kind of causation. For example,

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“reason” may refer to an “expression or statement offered . . . as a justification of

an act or procedure” or a “consideration, motive, or judgment . . . leading to an

action or course of action; a rational ground or motive.” Id. This second,

justification-based subsense controls the meaning of “by reason of” in the Twenty-

Fourth Amendment.

Under this second subsense, the Twenty-Fourth Amendment prohibits

denials of the right to vote motivated by a person’s failure to pay a tax. It does not

prohibit every voting requirement with any causal relationship to the payment of a

tax. If a State establishes a legitimate voter qualification for constitutionally

legitimate reasons, it does not violate the Twenty-Fourth Amendment—even if the

qualification sometimes denies the right to vote because a person failed to pay a

tax. To take the most obvious example, a requirement that voters have no felony

convictions is lawful even if the but-for cause of a felony conviction is the failure

to pay taxes. The Twenty-Fourth Amendment does not forbid the

disenfranchisement of tax felons.

That conclusion finds support in Harman, the only Supreme Court decision

to apply the Twenty-Fourth Amendment. Central to Harman’s reasoning was the

Court’s judgment that the certificate-of-residency alternative was designed as a

“substitute” for the poll tax, which in turn “was born of a desire to disenfranchise

the Negro.” 380 U.S. at 542–43. The Court also concluded that Virginia’s scheme

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was not necessary to enforce its residency requirements, especially considering that

forty-six States were able to limit the electorate to residents without resort to

similar measures. Id. In the light of those realities, it was clear that Virginia lacked

a legitimate justification for its law—the State’s bifurcated registration system was

motivated by a desire to tax the franchise. Because Virginia had no constitutionally

legitimate reason for its law that made the failure to pay a tax a but-for cause of the

denial of the right to vote, Harman held that the law violated the Twenty-Fourth

Amendment.

Even if court costs and fees imposed in a criminal sentence were taxes,

Amendment 4 and Senate Bill 7066 would not violate the Twenty-Fourth

Amendment. To be sure, if these obligations were taxes, the failure to pay them

would be a but-for cause of continued disenfranchisement, just as the failure to pay

the poll tax was a but-for cause of the denial of the right to vote in Harman. But

unlike the law in Harman, Amendment 4 and Senate Bill 7066 are a legitimate

exercise of Florida’s power to set core voter qualifications. The reason these laws

leave some felons disenfranchised—the justification for their continued

disenfranchisement—is not their failure to pay a tax. It is instead Florida’s

legitimate interest in restoring to the electorate only fully rehabilitated felons who

have satisfied the demands of justice. Because the justification for the voting

qualifications in Amendment 4 and Senate Bill 7066 is a constitutionally legitimate

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interest and not the failure to pay a tax, they satisfy the requirements of the

Twenty-Fourth Amendment.

The dissenters support their argument against this interpretation with several

pages of appeals to legislative history. See Jordan Dissent at 186–88. Even were

we to assume that some recourse to legislative history is appropriate in the

interpretation of the Twenty-Fourth Amendment—and we do not, see Scalia &

Garner, Reading Law § 66, at 369—the committee reports, floor debates, and press

statements from politicians cited by the dissenters would not be the best evidence.

In fact, the legislative history supports an interpretation that gives the phrase “by

reason of” in the Twenty-Fourth Amendment a different meaning than the phrase

“on account of” in the other voting-rights amendments. The House Judiciary

Committee considered several proposed versions of a poll-tax amendment,

including two that used the same “on account of” language as the Fifteenth and

Nineteenth Amendments. Abolition of Poll Tax in Federal Elections: Hearings

Before Subcommittee No. 5 of the Committee on the Judiciary, 87th Cong. 1–5

(1962). But the language that the committee reported out, which was eventually

presented to the states and ratified as the Twenty-Fourth Amendment, used the

different “by reason of” construction. H.R. Rep. No. 1821, at 1–2 (1962). Giving

different phrases different meanings makes all the more sense when it can be

shown that the drafter considered and rejected consistent language.

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C. Florida Has Not Violated the Due Process Clause.

Although the district court did not decide whether Florida’s

reenfranchisement laws violate the Due Process Clause, part of its injunction

cannot be justified by any of its other rulings. The district court declared

Amendment 4 and Senate Bill 7066 unconstitutional as applied to felons who

cannot determine the amount of their outstanding financial obligations with

diligence, and it created a process under which felons could request an opinion

from the Division of Elections stating their total amount of outstanding fines and

restitution. The injunction allowed any felon who did not receive an answer within

21 days to register and vote, and it prohibited the defendants from causing or

assisting in the prosecution of any persons who registered or voted under this

process. The felons ask us to affirm these aspects of the injunction on the grounds

that the relevant Florida laws are void for vagueness and deny them procedural due

process.

We first address the vagueness challenge. To register to vote in Florida, a

person must affirm that he is not disqualified from voting because of a felony

conviction. And it is a crime for a person to “willfully submit[] any false voter

registration information,” Fla. Stat. § 104.011(2), or to “willfully vote[] at any

election” “knowing he or she is not a qualified elector,” id. § 104.15. The felons

argue these criminal laws are void for vagueness because Senate Bill 7066 makes it

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difficult or impossible for some felons to determine whether they are eligible to

vote.

Under the Due Process Clause, a law is void for vagueness if it “fails to give

ordinary people fair notice of the conduct it punishes” or is “so standardless that it

invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015).

But a law “is not vague because it may at times be difficult to prove an

incriminating fact.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253

(2012). Instead, a law is vague when “it is unclear as to what fact must be proved.”

Id. (emphasis added). And even laws that are “in some respects uncertain” may be

upheld against a vagueness challenge if they contain a scienter requirement. United

States v. Waymer, 55 F.3d 564, 568 (11th Cir. 1995); see also Gonzales v. Carhart,

550 U.S. 124, 149 (2007) (“The Court has made clear that scienter requirements

alleviate vagueness concerns.”).

The challenged laws are not vague. Felons and law enforcement can discern

from the relevant statutes exactly what conduct is prohibited: a felon may not vote

or register to vote if he knows that he has failed to complete all terms of his

criminal sentence. See Fla. Stat. §§ 104.011(2), 104.15, 98.0751(1)–(2). This clear

standard, which includes a scienter requirement, provides fair notice to prospective

voters and “limit[s] prosecutorial discretion.” Carhart, 550 U.S. at 150.

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The felons’ real complaint is that it is sometimes difficult to determine

whether a felon has completed the financial terms of his sentence. They offer

examples of felons who cannot locate their criminal judgments, cannot determine

which financial obligations were imposed for felony as opposed to misdemeanor

offenses, or do not know how much they have paid toward their financial

obligations. But these concerns arise not from a vague law but from factual

circumstances that sometimes make it difficult to determine whether an

incriminating fact exists. See United States v. Williams, 553 U.S. 285, 306 (2008)

(explaining that a law is not rendered vague by “the possibility that it will

sometimes be difficult to determine” the existence of an incriminating fact). These

difficulties in proving the facts that determine a felon’s eligibility to vote cast no

doubt on the clarity of the requirement that felons neither register nor vote if they

know they have not satisfied the financial obligations imposed in their sentences.

Because there is no uncertainty about “what fact must be proved” to convict a

defendant under these statutes, the laws are not vague. Fox, 567 U.S. at 253; see

also Williams, 553 U.S. at 305–06.

The felons argue that the State’s “every dollar” policy makes the challenged

laws vague, but that policy only narrows the scope of criminal liability. Cf. Ward

v. Rock Against Racism, 491 U.S. 781, 795–96 (1989). The challenged laws forbid

felons to register or vote if they know they have failed to complete their sentences.

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And the policy adopts one of the narrowest possible constructions of “failing to

complete” a sentence. Under the policy, a felon fails to complete the financial

terms of his sentence only if his total payments toward all obligations related to his

sentence—even financing costs that accrue after sentencing—are less than the

amount imposed in his sentence. This narrowing construction mitigates vagueness

concerns instead of enhancing them: a felon cannot reasonably think he has

“completed” his terms of sentence if the total amount he has paid toward all related

obligations is less than the amount included in his sentence. And only felons in this

category are ineligible to vote under the “every dollar” policy.

The dissenters insist that the law is vague because some felons will not be

certain about their eligibility, and a “wrong guess . . . results in severe

consequences,” possibly including “an arrest for a voting violation.” Jordan

Dissent at 169 (internal quotation marks omitted). Never mind the fact that no

felon who honestly believes he has completed the terms of his sentence commits a

crime by registering and voting, see Fla. Stat. §§ 104.011(2), 104.15 (establishing

scienter requirements for voting violations), and that at least 85,000 felons felt the

law was clear enough for them to go ahead and register. The dissenters’ vagueness

argument strains credulity.

The felons also argue that Florida has denied them procedural due process.

See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). They assert a liberty interest

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in the right to vote and argue that Florida has deprived them of that interest without

adequate process. We may assume that the right to vote is a liberty interest

protected by the Due Process Clause. But see Johnson v. Hood, 430 F.2d 610, 612

(5th Cir. 1970) (“[E]ven an improper denial of the right to vote for a candidate for

a state office achieved by state action is not a denial of a right of property or liberty

secured by the due process clause.” (internal quotation marks omitted) (alteration

adopted)). Even so, this argument fails because any deprivation of that right was

accomplished through the legislative process and the process for adopting a

constitutional amendment, which provide more than adequate procedures for the

adoption of generally applicable rules regarding voter qualifications.

In deciding what the Due Process Clause requires when the State deprives

persons of life, liberty or property, the Supreme Court has long distinguished

between legislative and adjudicative action. See, e.g., Bi-Metallic Inv. Co. v. State

Bd. of Equalization, 239 U.S. 441, 445–46 (1915). The State often deprives

persons of liberty or property through legislative action—general laws that apply

“to more than a few people.” Id. at 445; see also 75 Acres, LLC v. Miami-Dade

County, 338 F.3d 1288, 1296 (11th Cir. 2003) (deeming an action legislative

because it was “enacted by a legislative body” performing a “fundamentally

legislative” function or, alternatively, was “generally applicable” and “prospective

in nature”). When the State does so, the affected persons are not entitled to any

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process beyond that provided by the legislative process. Bi-Metallic, 239 U.S. at

445 (“General statutes within the state power are passed that affect the person or

property of individuals, sometimes to the point of ruin, without giving them a

chance to be heard. Their rights are protected in the only way that they can be in a

complex society, by their power, immediate or remote, over those who make the

rule.”); accord 75 Acres, 338 F.3d at 1294. In contrast, the Due Process Clause

may require individual process when a State deprives persons of liberty or property

through adjudicative actions—those that concern a “relatively small number of

persons” who are “exceptionally affected, in each case upon individual grounds,”

by the state action. Bi-Metallic, 239 U.S. at 446; see also 75 Acres, 338 F.3d at

1294. To determine the process due for adjudicative deprivations, courts apply the

familiar balancing test of Mathews v. Eldridge, 424 U.S. 319.

The felons were deprived of the right to vote through legislative action, not

adjudicative action. Under its Constitution, Florida deprives all felons of the right

to vote upon conviction. See Fla. Const. art. VI, § 4(a). This constitutional

provision is a law “of general applicability” that plainly qualifies as legislative

action. See 75 Acres, 338 F.3d at 1296–97. And even if we accept the argument

that Amendment 4 and Senate Bill 7066 deprive felons of the right to vote by

conditioning reenfranchisement on the completion of all terms of sentence, those

laws also qualify as legislative acts. See id. The legislative and constitutional-

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amendment processes gave the felons all the process they were due before Florida

deprived them of the right to vote and conditioned the restoration of that right on

completion of their sentences.

The felons complain that it is sometimes difficult to ascertain the facts that

determine eligibility to vote under Amendment 4 and Senate Bill 7066, but this

complaint is only another version of the vagueness argument we have already

rejected. The Due Process Clause does not require States to provide individual

process to help citizens learn the facts necessary to comply with laws of general

application.

To avail themselves of the Mathews v. Eldridge framework, the felons were

obliged to prove a deprivation of liberty based on adjudicative action. See 75

Acres, 338 F.3d at 1294. But the felons do not challenge any individual voter-

eligibility determinations that could qualify as adjudicative action, so Mathews

does not apply. And in any event, Florida provides registered voters with adequate

process before an individual determination of ineligibility. Before being removed

from the voter registration system, voters are entitled to predeprivation notice and a

hearing. Fla. Stat. § 98.075(5), (7). And any voter who is dissatisfied with the

result is entitled to de novo review of the removal decision in state court. Id.

§ 98.0755. These procedures provide more than adequate process to guard against

erroneous ineligibility determinations. See Mathews, 424 U.S. at 333–35.

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The injunction the district court entered looks nothing like a remedy for a

denial of due process. It does not require additional procedures for any existing

adjudicative action that deprives felons of a liberty interest in voting. Instead, it

creates an adjudicative process to aid felons in complying with nonvague laws of

general application. States are certainly free to establish such a process—indeed,

Florida has done so through its preregistration advisory-opinion process and

accompanying immunity from criminal prosecution. But the notion that due

process mandates this kind of procedure in the absence of any adjudicative action

is unprecedented. The injunction did not remedy any denial of due process, so we

cannot affirm it on that ground.

A fundamental confusion in this litigation has been the notion that the Due

Process Clause somehow makes Florida responsible not only for giving felons

notice of the standards that determine their eligibility to vote but also for locating

and providing felons with the facts necessary to determine whether they have

completed their financial terms of sentence. The Due Process Clause imposes no

such obligation. States are constitutionally entitled to set legitimate voter

qualifications through laws of general application and to require voters to comply

with those laws through their own efforts. So long as a State provides adequate

procedures to challenge individual determinations of ineligibility—as Florida

does—due process requires nothing more.

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IV. CONCLUSION

We REVERSE the judgment of the district court and VACATE the

challenged portions of its injunction. We LIFT the stay of the cross-appeal, Case

No. 20-12304, and DIRECT the Clerk to sever the cross-appeal, issue a briefing

schedule for it, and assign a panel to resolve it.

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WILLIAM PRYOR, Chief Judge, joined by LAGOA, Circuit Judge, concurring:

I write separately to explain a difficult truth about the nature of the judicial

role. Our dissenting colleagues predict that our decision will not be “viewed as

kindly by history” as the voting-rights decisions of our heroic predecessors. Jordan

Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the

Southern Judges Who Translated the Supreme Court’s Brown Decision Into a

Revolution for Equality (1981)). But the “heroism” that the Constitution demands

of judges—modeled so well by our predecessors—is that of “devotion to the rule

of law and basic morality.” Patrick E. Higginbotham, Conceptual Rigor: A Cabin

for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass,

Unlikely Heroes, supra). As a distinguished colleague presciently warned decades

ago, there is a “genuine risk” that later judges will “easily misunderstand” this

lesson. Id. Our duty is not to reach the outcomes we think will please whoever

comes to sit on the court of human history. The Constitution instead tasks us with

“administering the rule of law in courts of limited jurisdiction,” id. at 1343, which

means that we must respect the political decisions made by the people of Florida

and their officials within the bounds of our Supreme Law, regardless of whether

we agree with those decisions. And in the end, as our judicial oath acknowledges,

we will answer for our work to the Judge who sits outside of human history.

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LAGOA, Circuit Judge, concurring:

I concur fully with the majority opinion. There is nothing unconstitutional

about Florida’s reenfranchisement scheme. I write separately to express an

additional reason why, in my judgment, heightened scrutiny does not apply here.

I.

Since 1838, the Florida constitution has explicitly authorized felon

disenfranchisement as a criminal sanction, see Fla. Const. art. VI, § 4 (1838), and

Florida has had such a law on the books since 1845, see Act of Dec. 29, 1845, ch.

38, art. 2 § 3, 1845 Fla. Laws 77, 78. Florida continues to disenfranchise felons,1

and it is not alone in this respect—forty-seven other states and the District of

Columbia also practice some form of felon disenfranchisement. See Jones v.

Governor of Florida, 950 F.3d 795, 801 n.3 (11th Cir. 2020) (Jones I).

In 1968, Florida took its first step toward reenfranchising felons. In

November of that year, Florida voters approved by referendum Florida’s current

constitution. Its enactment expanded the electorate in two ways. First, while the

previous constitution “disenfranchised persons convicted of certain misdemeanors

such as petty larceny, under the new 1968 [constitution], only those persons

1

The Supreme Court has upheld the constitutionality of such felon-disenfranchisement

schemes against challenges brought under the Equal Protection Clause of the Fourteenth

Amendment. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Court—harmonizing the

Amendment’s first and second sections—held that section two of the Fourteenth Amendment

authorized an “affirmative sanction” of felon disenfranchisement. See id. at 41–55.

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convicted of felonies could be disenfranchised.” Johnson v. Governor of Florida,

405 F.3d 1214, 1221 (11th Cir. 2005) (en banc). Second, while none of Florida’s

previous constitutions provided for the restoration of civil rights, the 1968

constitution provided a path for felons to restore their right to vote: executive

clemency. See Fla. Const. art. IV, § 8(a) (1968).

Today, felons in Florida—including those with out-of-state and federal

convictions—may petition the Clemency Board to have their civil rights restored

after completing the carceral terms of their sentence. See Fla. Stat. § 940.05; Fla. R.

Exec. Clem. 5. Notably, a felon is not required to finish paying his pecuniary

obligations before applying for clemency. See Fla. R. Exec. Clem. 10; see also

Johnson, 405 F.3d. at 1216 n.1.

Florida’s felon civil-rights-restoration scheme has survived numerous

constitutional challenges. In 1969, a group of felons challenged on equal protection

and due process grounds both the disenfranchisement and the reenfranchisement

provisions of the 1968 constitution. See Beacham v. Braterman, 300 F. Supp. 182,

183 (S.D. Fla.), aff’d, 396 U.S. 12 (1969). A three-judge panel of the Southern

District of Florida upheld the provisions at issue against both challenges,

concluding—before the Supreme Court’s decision in Richardson—that felon

disenfranchisement is authorized under the United States Constitution and that

clemency, as part of the pardon power, is not subject to judicial control. Id. at 183–

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84. The Supreme Court summarily affirmed. Beacham v. Braterman, 396 U.S. 12

(1969).

In Johnson, a group of felons argued that the 1968 constitution was adopted

with an invidious discriminatory motive in violation of the Equal Protection Clause

and that the requirement that felons pay restitution before being granted clemency

violated the Twenty-Fourth Amendment’s prohibition on poll taxes. 405 F.3d at

1216 n.1, 1217. The district court granted the State’s summary judgment motion on

both counts, and this Court, sitting en banc, affirmed. Id. at 1217, 1235. We found

no evidence that the 1968 Florida constitution was enacted with any racial bias. Id.

at 1225. And we noted that the payment of restitution was not a prerequisite to

applying for executive clemency. See id. at 1216 n.1.

Finally, in Hand v. Scott, 888 F.3d 1206 (11th Cir. 2018), a group of felons

argued that the unfettered discretion the Florida Clemency Board exercised in its

administration of the clemency process facially violated the Equal Protection Clause

of the Fourteenth Amendment. Id. at 1207. While the issue was ultimately mooted

before the merits were heard, we granted the State a stay pending appeal and

concluded that the State was likely to prevail on the merits of the felons’ claim that

the Clemency Board’s “broad discretion” to operate its “standardless” clemency

process violated equal-protection principles. Id. at 1208–10.

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In short, Florida’s felon civil-rights-restoration process has, for fifty-two

years, provided felons a constitutionally permissible path to the restoration of their

civil rights, including the right to vote.

On November 6, 2018, Florida voters2 passed the “Voting Rights Restoration

Act”—or “Amendment 4.” This ballot initiative further expanded felons’ access to

reenfranchisement by amending the Florida constitution as follows:

(a) No person convicted of a felony, or adjudicated in this or any other

state to be mentally incompetent, shall be qualified to vote or hold

office until restoration of civil rights or removal of disability. Except

as provided in subsection (b) of this section, 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.

(b) No person convicted of murder or a felony sexual offense shall be

qualified to vote until restoration of civil rights.

Fla. Const. art. VI, § 4(a)–(b) (amended 2018) (amended text in italics).

In May 2019, the Florida legislature passed Senate Bill 7066 (“SB-7066”),

Fla. Stat. § 98.0751, which implemented Amendment 4. As relevant here, SB-7066

did two things. First, it defined “[c]ompletion of all terms of sentence” to include

“any portion of a sentence that is contained in the four corners of the sentencing

document,” including: release from imprisonment; termination of probation, parole

2

The Florida constitution may be amended by referendum “if the proposed amendment or

revision is approved by vote of at least sixty percent of the electors voting on the measure.” Fla.

Const. art. XI, § 5(e).

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or community control; fulfillment of any additional terms ordered by the court; and

payment of all restitution to victims and “fines or fees ordered by the court as a part

of the sentence or that are ordered by the court as a condition of any form of

supervision.” Fla. Stat. § 98.0751(2)(a).

Second, it established how the financial obligations could be completed:

Financial obligations required under sub-subparagraph a. or sub-

subparagraph b. are considered completed in the following manner or

in any combination thereof:

(I) Actual payment of the obligation in full.

(II) Upon the payee’s approval, either through appearance in

open court or through the production of a notarized consent by

the payee, the termination by the court of any financial obligation

to a payee, including, but not limited to, a victim, or the court.

(III) Completion of all community service hours, if the court,

unless otherwise prohibited by law or the State Constitution,

converts the financial obligation to community service.

A term required to be completed in accordance with this paragraph shall

be deemed completed if the court modifies the original sentencing order

to no longer require completion of such term. The requirement to pay

any financial obligation specified in this paragraph is not deemed

completed upon conversion to a civil lien.

Id. § 98.0751(2)(a)5.e. 3

In this way, then, in implementing Amendment 4, SB-7066 provides felons

four new avenues—in addition to the existing executive clemency process—to

3

Florida Statute § 98.0752(2)(a)5.d. sets forth the parameters for the judicial modification

established in the last paragraph of § 98.0752(2)(a)5.e.

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restore their right to vote upon “completion of all terms of sentence”: (1) actual

payment of their financial obligations; (2) receipt of a payee’s termination of those

financial obligations; (3) conversion of any financial obligations to community

service hours and subsequent completion of those hours; and (4) judicial

modification of the original sentencing order. See id. § 98.0751.

II.

The core dispute in this case is whether Florida’s felon reenfranchisement

scheme, which does not consider a felon’s ability to pay his legal financial

obligations (“LFOs”), should be subject to some form of heightened scrutiny or mere

rational basis review. I agree that heightened scrutiny is inappropriate for the

reasons laid out in the majority opinion. In my judgment, heightened scrutiny is also

inappropriate because Florida provides indigent felons alternative avenues to attain

reenfranchisement.

A.

As the Supreme Court has directed, we must, in the equal protection context:

decide, first, whether [the law] operates to the disadvantage of some

suspect class or impinges upon a fundamental right explicitly or

implicitly protected by the Constitution, thereby requiring strict judicial

scrutiny. . . . If [it does] not, the [law] must still be examined to

determine whether it rationally furthers some legitimate, articulated

state purpose and therefore does not constitute an invidious

discrimination in violation of the Equal Protection Clause of the

Fourteenth Amendment.

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

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The first question—is there a fundamental right involved—has been

addressed already: felons who have been disenfranchised have no fundamental right

to vote. Indeed, this finding was at the core of the Supreme Court’s decision in

Richardson. There, the Court said that, consistent with the Constitution, states may

strip—even permanently—the right of felons to participate in the franchise.

Richardson, 418 U.S. at 54 (“As we have seen, however, the exclusion of felons

from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a

sanction which was not present in the case of the other restrictions on the franchise

which were invalidated in the cases on which respondents rely.”).

Consistent with that principle, we already have applied rational basis review

to felon reenfranchisement schemes. See Shepherd v. Trevino, 575 F.2d 1110, 1114–

15 (5th Cir. 1978). 4 In Trevino, we examined a Texas reenfranchisement scheme

that allowed for discretionary reenfranchisement of those convicted in state court

but had no analogous mechanism for the reenfranchisement of felons convicted in

federal court. Id. at 1111. We had no trouble concluding that only rational basis

review applied (and thus, necessarily, that felons had no fundamental right to vote).

Id. at 1114–15 (“Therefore, we conclude that selective disenfranchisement or

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted all Fifth Circuit decisions issued before October 1, 1981, as binding

precedent.

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reenfranchisement of convicted felons must pass the standard level of scrutiny

applied to state laws allegedly violating the equal protection clause. Such laws must

bear a rational relationship to the achieving of a legitimate state interest.”).

Every court to have analyzed the issue has reached the same conclusion:

felons do not have a fundamental right to vote. See Harvey v. Brewer, 605 F.3d

1067, 1079 (9th Cir. 2010) (O’Connor, J.) (“[Felons] cannot complain about their

loss of a fundamental right to vote because felon disenfranchisement is explicitly

permitted under the terms of Richardson. . . . Therefore, we do not apply strict

scrutiny as we would if plaintiffs were complaining about the deprivation of a

fundamental right.”); Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010)

(“Having lost their voting rights, Plaintiffs lack any fundamental interest to

assert. . . . ‘It is undisputed that a state may constitutionally disenfranchise convicted

felons, and that the right of felons to vote is not fundamental.’” (quoting Wesley v.

Collins, 791 F.2d 1255, 1261 (6th Cir. 1986))); Madison v. State, 163 P.3d 757, 767

(Wash. 2007) (“However, Richardson clearly distinguished the right that is at stake

for felons from the Court’s previous holdings that citizens possess a fundamental

right to vote.”); Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (“Plaintiff’s

argument fails because the right of convicted felons to vote is not ‘fundamental.’

That was precisely the argument rejected in Richardson.”); Williams v. Taylor, 677

F.2d 510, 514 (5th Cir. 1982) (“Appellant’s interest in retaining his right to vote is

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constitutionally distinguishable from the ‘right to vote’ claims of individuals who

are not felons. Section 2 of the Fourteenth Amendment allows a state to prohibit a

felon from voting, and its classification of felons for voting restrictions must bear

only a rational relation to the achieving of a legitimate state interest.” (citation

omitted)).

The second question—is a suspect classification at issue—is also well settled:

indigency is not a suspect class. Nor could it be. As Justice Harlan noted, “[e]very

financial exaction which the State imposes on a uniform basis is more easily satisfied

by the well-to-do than by the indigent.” Douglas v. California, 372 U.S. 353, 361

(1963) (Harlan, J., dissenting); accord Lewis v. Casey, 518 U.S. 343, 376 (1996)

(Thomas, J., concurring). Under any view that indigency was a suspect class under

the Fourteenth Amendment, “regulatory measures always considered to be

constitutionally valid, such as sales taxes, state university tuition, and criminal

penalties, would have to be struck down.” Lewis, 518 U.S. at 376 (Thomas, J.,

concurring) (citing Douglas, 372 U.S. at 361–62 (Harlan, J., dissenting)).

Applying this principle, the Supreme Court has held that discrimination

against the indigent, without more, does not implicate a suspect classification—and

thus does not trigger heightened scrutiny. See, e.g., Maher v. Roe, 432 U.S. 464,

471 (1977) (“In a sense, every denial of welfare to an indigent creates a wealth

classification as compared to nonindigents who are able to pay for the desired goods

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or services. But this Court has never held that financial need alone identifies a

suspect class for purposes of equal protection analysis.”); Rodriguez, 411 U.S. at 29

(noting that “this Court has never heretofore held that wealth discrimination alone

provides an adequate basis for invoking strict scrutiny”).

Under the traditional principles of equal protection, it is clear that only rational

basis review would apply to Florida’s reenfranchisement scheme. Because no

suspect class or fundamental right is implicated, neither condition that triggers

heightened scrutiny is present in this case. But this does not end the inquiry, as my

colleagues in dissent argue that heightened scrutiny is required here because of a line

of Supreme Court precedent usually associated with Bearden v. Georgia, 461 U.S.

660 (1983).

B.

As explained in the majority opinion, the Bearden line of cases applies only

in certain well-defined contexts: poverty-based imprisonment and access to judicial

proceedings. See Maj. Op. at 15–21. Because this case does not present either of

those situations, and because the Supreme Court has cautioned against extending the

doctrine beyond them, see Lewis, 518 U.S. at 354, it is not applicable here. 5

5

It should also be noted that each of the Bearden cases involved, through no more than

two degrees of separation, a fundamental liberty interest. In the criminal cases where imprisonment

was at issue, the fundamental liberty interest at issue is plain: “Freedom from bodily restraint has

always been at the core of the liberty protected by the Due Process Clause from arbitrary

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There is a reason the doctrine is so limited by subject matter—the Bearden

line of cases is a unique amalgamation of constitutional doctrines that does not fit

neatly within traditional principles of Fourteenth Amendment jurisprudence. The

Supreme Court has never made clear whether the doctrine rests on equal protection

or due process principles. Some decisions now associated with this line rested their

analyses explicitly on the Due Process Clause. See, e.g., Boddie, 401 U.S. at 382.

Others have relied entirely on the Equal Protection Clause. See, e.g., Williams v.

Illinois, 399 U.S. 235, 245 (1970). In Bearden, the Supreme Court stated that this

was intentional: “Due process and equal protection principles converge in the

Court’s analysis in these cases.” 461 U.S. at 665. “The equal protection concern

relates to the legitimacy of fencing out would-be appellants based solely on their

inability to pay core costs,” M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996), while the

governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citing Youngberg v. Romeo,

457 U.S. 307, 316 (1982)). And in the civil cases, the Supreme Court has explicitly required the

identification of a fundamental liberty interest to trigger Bearden scrutiny. Compare Boddie v.

Connecticut, 401 U.S. 371, 374 (1971) (waiving filing fees, on due process grounds, for marriage

dissolution because marriage and divorce are fundamental interests), with United States v. Kras,

409 U.S. 434, 445 (1973) (declining to waive filings fees required to secure discharge of

bankruptcy because bankruptcy discharge entails no “fundamental interest”). Only one case—

Mayer v. Chicago, 404 U.S. 189 (1971)—does not meet this criterion. In Mayer, the Court waived

a filing fee for an indigent defendant who violated a statute that imposed only fines. Nevertheless,

that case is distinguishable for the very reason identified in the majority opinion—it, at the very

least, arose in the access-to-courts context. See Christopher v. Harbury, 536 U.S. 403, 412–15

(2002) (describing M.L.B. v. S.L.J., Griffin v. Illinois, Mayer and Boddie as “prior cases on denial

of access to courts [that] have not extended over the entire range of claims that have been brought

under that general rubric elsewhere”). And Justice Thomas has identified the peculiarity of the

Mayer decision in this line of precedent. See M.L.B. v. S.L.J., 519 U.S. 102, 140–45 (1996)

(Thomas, J., dissenting).

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“due process concern homes in on the essential fairness of the state-ordered

proceedings anterior to adverse state action,” id., or, in other words, on the “fairness

of relations between the criminal defendant and the State,” Bearden, 461 U.S. at 665.

Both concerns are necessary for the application of Bearden scrutiny, but neither is

alone sufficient. This is because indigency, as we have already seen, is not a suspect

class. It is for this reason that Bearden cases have only appeared in the two contexts

discussed in the majority opinion.

But even if we were to extend the doctrine to the felon-reenfranchisement

context, I believe this case would fail to meet its requirements. In Rodriguez, the

Supreme Court, in distinguishing that case from Bearden-type cases, stated that the

individuals, or groups of individuals, who constituted the class

discriminated against in our prior [Bearden-type] cases shared two

distinguishing characteristics: because of their impecunity they were

completely unable to pay for some desired benefit, and as a

consequence, they sustained an absolute deprivation of a meaningful

opportunity to enjoy that benefit.

411 U.S. at 20. Neither of these conditions is satisfied here.

On this point, it is worth noting that “actual payment” of LFOs is but one

avenue available to the felon who seeks to have his voting rights restored in Florida.

SB-7066 provides for three alternative avenues: termination of the obligation by the

payee; conversion of LFOs to community service hours; and judicial modification

of the original sentencing order. And the Florida constitution continues to provide

felons the avenue of executive clemency. Thus, felons in Florida generally have five

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avenues available to them to secure reenfranchisement. Felons unable to pay their

LFOs have four avenues available if their convictions were in-state, while indigent

felons with out-of-state convictions or federal convictions have two.6

As such, indigent felons in Florida are not deprived of reenfranchisement

solely because of inability to pay. 7 Nor do they suffer an absolute deprivation of a

meaningful opportunity to attain reenfranchisement. Some indigent felons will be

granted clemency. Some will have their LFOs converted to community service

hours. Some will have their original sentencing order modified by a court. And

some will have their debts terminated by the payee. All indigent felons have

alternative avenues available, and some will succeed in pursuing those avenues.

In dissent, my colleagues note that “regaining access to the ballot through

these methods is highly unlikely.” Jordan Dissent at 131 n.6. And our previous

panel decision similarly determined that the non-payment avenues to

6

Indigent felons with out-of-state convictions can seek executive clemency in Florida, see

Fla. R. Exec. Clem. 5, 10B, or have their rights restored in the state of their conviction, see

Schlenther v. Dep’t of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. Dist. Ct. App. 1998)

(“Once another state restores the civil rights of one of its citizens whose rights had been lost

because of a conviction in that state, they are restored and the State of Florida has no authority to

suspend or restore them at that point. The matter is simply at an end.”). Indigent felons with

federal convictions can seek executive clemency, see Fla. R. Exec. Clem. 5, 10B, or a presidential

pardon, see U.S. Const. art. II, § 2, cl. 1.

7

The Bearden Court itself referred repeatedly to the fact that the indigents at issue were

being punished “solely” for their indigency. See Bearden, 461 U.S. at 661, 664, 667, 674. Their

status as indigents was not merely a substantial reason for their punishment, but the sole reason.

See id. at 674 (“[T]his is no more than imprisoning a person solely because he lacks funds to pay

the fine, a practice we condemned in Williams and Tate.” (emphasis added)).

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reenfranchisement “suffer from a common and basic infirmity—they are entirely

discretionary in nature,” and, as such, none “is a viable stand-in for the automatic

reenfranchisement enjoyed by felons” who can afford to pay. Jones I, 950 F.3d at

826. But neither the appellees, nor the previous panel decision, nor the dissenters

identify any case in which a state provided indigents an alternative route to the

attainment of a state-created benefit that the Supreme Court struck down as violative

of the Bearden principle. And as the Supreme Court has said, “at least where wealth

is involved, the Equal Protection Clause does not require absolute equality or

precisely equal advantages.” Rodriguez, 411 U.S. at 24.

Moreover, the alternative treatment of indigents here is not occasioned due to

their indigency, but rather “for some legitimate State interest.” Walker v. City of

Calhoun, 901 F.3d 1245, 1260 (11th Cir. 2018) (“The sine qua non of a Bearden- or

Rainwater-style claim, then, is that the State is treating the indigent and the non-

indigent categorically differently. Only someone who can show that the indigent are

being treated systematically worse ‘solely because of [their] lack of financial

resources,’—and not for some legitimate State interest—will be able to make out

such a claim.” (citation omitted) (quoting Bearden, 461 U.S. at 661)). As explained

in the majority opinion, “[t]he people of Florida could rationally conclude that felons

who have completed all terms of their sentences, including paying their fines, fees,

costs, and restitution, are more likely to responsibly exercise the franchise than those

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who have not.” Maj. Op. at 25. When a felon pays his LFOs, this interest is

furthered. But if a felon is unable to pay those LFOs, the alternative avenues

available to that indigent felon ensure that he has satisfied some other form of

“completion” of his full sentence before being granted access to the franchise.

Because completion of a criminal sentence is undoubtedly a valid voter qualification,

see Maj. Op. at 17, the people of Florida have a legitimate interest in enforcing

compliance with that requirement.

Finally, the dissent’s suggestion that SB-7066’s alternatives to payment in full

frustrate the intent of Florida’s voters when they approved Amendment 4 is contrary

to the plain language of that constitutional amendment. First, Amendment 4

expressly conditions reenfranchisement “upon completion of all terms of sentence

including parole and probation.” The dissent reads this language to include felons

who are unable to pay their LFOs because they have “‘completed’ all terms of their

sentences that they can.” But the constitutional language does not say that, and the

dissent’s reading dilutes the mandated connection between the benefit—

reenfranchisement—and its required condition—completion of all terms of

sentence, including all financial obligations imposed as part of the criminal sentence.

“Completion” means “the act of completing” or “the state of being completed.”

Completion, Webster’s New World College Dictionary (3d ed. 1997); see also

Completion, The American Heritage Dictionary of the English Language (4th ed.

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2000) (same). “Complete” means “fully carried out,” “concluded,” or “brought to

an end.” Complete, Merriam-Webster’s Collegiate Dictionary (10th ed. 1993); see

also Complete, The American Heritage Dictionary of the English Language (4th ed.

2000) (defining “complete” as “[h]aving come to an end; concluded” or “[t]o bring

to a finish or an end”). To fully carry out or to conclude a financial obligation is to

pay it in full. Thus, under the plain language of Amendment 4, a felon who is unable

to pay his LFOs would not have completed all terms of his sentence and would be

ineligible for reenfranchisement.

SB-7066, however, establishes additional methods for a felon to complete all

the pecuniary terms of his sentence other than through payment of LFOs for

purposes of reenfranchisement. A felon who has his LFOs converted to community

service hours, which he then satisfies, or who has his original sentencing order

modified to no longer require completion of his LFOs has completed that obligation.

At any of these junctions, the felon’s pecuniary terms of sentence have been “fully

carried out” and “brought to an end.”8

Second, by its very terms, Amendment 4 does not reenfranchise all, or even

most, felons. In enacting Amendment 4, the people of Florida chose to reenfranchise

8

The felons’ and dissent’s invocation of the canon of constitutional avoidance to argue that

“completion” means “completion to the best of one’s ability” is of no avail. That canon “has no

application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 494 (2001). Here, there is no such ambiguity.

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only felons who were not convicted of murder or a felony sexual offense and who

had satisfied an express condition—the “completion of all terms of [their] sentence.”

Fla. Const. art. VI, § 4(a)–(b). To argue that the purpose of Amendment 4 was to

reenfranchise a particular percentage of felons that this Court deems acceptable is to

ignore the words adopted by the people of Florida when they amended their

constitution.

I would thus hold that, even if Bearden’s heightened scrutiny were extended

to the context of felon-reenfranchisement, application of that doctrine is

inappropriate here. The due process concerns that animated that decision are wholly

absent. And the equal protection component is inapplicable because Florida

provides indigent felons alternative avenues to reenfranchisement apart from actual

payment of LFOs. Because those alternative avenues further Florida’s legitimate

interest in ensuring that only felons who have completed the terms of their sentence

are granted access to the franchise pursuant to Amendment 4, no unconstitutional

wealth discrimination is occasioned. The “equal protection of the laws [does not]

deny a State the right to make classifications in law when such classifications are

rooted in reason.” Griffin v. Illinois, 351 U.S. 12, 21 (1956) (Frankfurter, J.,

concurring).

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III.

My dissenting colleagues take issue with many aspects of Florida’s LFO

system, as well as Florida’s broader policy of funding its justice system through,

among other things, the assessment of criminal fees and costs (even though Florida

is far from unique in that regard 9). Much of their critique articulates a policy

preference that Florida’s voters and its legislature could and should have done more.

But as the Supreme Court has instructed, “[a] statute is not invalid under the

Constitution because it might have gone farther than it did[.]” Roschen v. Ward, 279

U.S. 337, 339 (1929). “[E]very reform that benefits some more than others may be

criticized for what it fails to accomplish,” Rodriguez, 411 U.S. at 39, so “reform may

take one step at a time,” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489

(1955).

Florida took its first step toward felon reenfranchisement in 1968—

reenfranchising all misdemeanants and establishing for the first time a discretionary,

executive-clemency process that could restore a felon’s civil rights. See Fla. Const.

9

A fifty-state survey conducted by the Brennan Center for Justice, the National Center for

State Courts, and NPR shows that Florida is, in fact, firmly in the majority when it comes to the

fees charged to felons. See Joseph Shapiro, State-by-State Court Fees, NPR (May 19, 2014),

https://www.npr.org/2014/05/19/312455680/state-by-state-court-fees (citations omitted). Forty-

nine out of fifty States charge criminal defendants for electronic monitoring services. See id.

Forty-four out of fifty States charge defendants for costs of supervision. See id. Forty-three States

and the District of Columbia charge defendants for the use of a public defender. See id. And forty-

one out of fifty States charge felons for room and board. See id. In total, thirty-one states

(including Florida) charge defendants for all four types of costs. See id.

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art. IV, § 8(a) (1968). With the passage of Amendment 4, Florida took a second

step, reenfranchising those felons who were not convicted of murder or a felony

sexual offense and who had satisfied an express condition—the “completion of all

terms of [their] sentence.” Our role in the constitutional system is simply to review

that step for compliance with the Constitution, not to lengthen its stride. To proceed

otherwise would violate the principles of federalism and separation of powers—the

two structural guarantors of individual rights and liberty in our Constitution.

For the reasons set forth in the majority opinion and this concurrence,

Florida’s felon reenfranchisement scheme is constitutional. It falls to the citizens of

the State of Florida and their elected state legislators, not to federal judges, to make

any additional changes to it.

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MARTIN, Circuit Judge, joined by WILSON, JORDAN, and JILL PRYOR,

Circuit Judges, dissenting:

I am pleased to join Judge Jordan’s dissent in full. I write separately to

elaborate on the due process problems that stem from Florida’s actions here and

exist separately from the other constitutional deficiencies discussed in Judge

Jordan’s dissent. In particular, I take issue with the position accepted by the

majority that Florida’s constitutional amendment imposes no obligation, or even

any responsibility, on the State to provide its citizens with the information required

in order for them to register to vote. Maj. Op. at 59.

I.

The District Court’s unchallenged findings of fact led it to observe that

Florida’s implementation of Amendment 4 has been an “administrative train

wreck.” Jones v. DeSantis (“Jones II”), ___ F. Supp. 3d ___, 2020 WL 2618062,

at *34 (N.D. Fla. May 24, 2020). The majority breezes over the infirmities of the

process. But I cannot so easily condone a system that is projected to take upwards

of six years simply to tell citizens whether they are eligible to vote; that demands

of those citizens information based on a legal fiction (of its own making) known as

the “every-dollar” method; and which ultimately throws up its hands and denies

citizens their ability to vote because the State can’t figure out the outstanding

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balances it is requiring those citizens to pay. This system does not comport with

due process of law.

A.

When analyzing a claim for procedural due process, the first question we

must ask is whether the plaintiffs have established the deprivation of a

constitutionally protected liberty or property interest. See, e.g., Woods v. Comm’r,

Ala. Dep’t of Corr., 951 F.3d 1288, 1293 (11th Cir. 2020). The Plaintiffs here

have clearly established such a protected interest.

All agree that the right to vote is a fundamental right protected by the

Fourteenth Amendment. See, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62, 84 S.

Ct. 1362, 1381 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter

in a free and democratic society.”). It is true, of course, that despite its

fundamental status, the right to vote may be abridged or altogether withheld by the

State. This is the holding of Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655

(1974), in which the Supreme Court held that the Fourteenth Amendment

condones felon disenfranchisement. Id. at 54–56, 94 S. Ct. at 2671–72. But

Richardson does not tell us what a State may do once the State Legislature—or, in

this case, the people—adopts a scheme to restore the fundamental right to vote to

its ex-felons.

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Once a State promises its citizens restoration of their right to vote based on

defined, objective criteria, it has created a due-process interest. This seems

obvious based on a few distinct, though related, principles of law. The first is the

general idea that “a State creates a protected liberty interest by placing substantive

limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.

Ct. 1741, 1747 (1983). Relevant examples abound. For instance, in Kapps v.

Wing, 404 F.3d 105 (2d Cir. 2005), the Second Circuit held that New York created

a property interest in low-income energy benefits when it adopted a “statutory

framework[]” that “set[] fixed eligibility criteria” for those benefits. Id. at 114.

Also, the Sixth Circuit, in Jasinski v. Tyler, 729 F.3d 531 (6th Cir. 2013), found a

due-process interest created by the State’s filing of a child-protection petition

under Michigan’s Child Protection Law. Id. at 541–44. This was so because the

relevant statute mandated the filing of a petition when fixed “substantive

predicates” were met, and because the outcome of the petition could not be altered

by official discretion. Id. at 543–44. The lesson from this body of law is that

when a State promises its citizens an entitlement based upon the satisfaction of

objective criteria, it creates a due process right for those citizens. Florida did just

that, here.

Second, the fundamental nature of the right to vote matters. It has been a

generally accepted principle for over 50 years “that the right to vote is one of the

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fundamental personal rights included within the concept of liberty as protected by

the due process clause.” United States v. Texas, 252 F. Supp. 234, 250 (W.D.

Tex.), aff’d per curiam, 384 U.S. 155, 86 S. Ct. 1383 (1966). The right to vote

becomes a nullity once people were barred from ever getting on the voter rolls.

Thus, States cannot prevent eligible citizens from registering to vote without

giving them due process of law. See Hall v. Louisiana, 108 F. Supp. 3d 419, 438

(M.D. La. 2015) (holding no due process violation in part because the plaintiffs

“did not encounter any problems registering to vote”), aff’d, 884 F.3d 546 (5th Cir.

2018); see also Bell v. Marinko, 235 F. Supp. 2d 772, 777–78 (N.D. Ohio 2002)

(recognizing that the deprivation of voter registration implicates the fundamental

right to vote). Florida has, in effect, done just that here. Its Constitution now

promises these citizens the right to vote upon completion of their sentences. The

people to whom this promise has been made have a constitutional interest in being

allowed, to the fullest of their abilities, to exercise that right.

We know, as the Supreme Court has told us, that Florida could have

withheld the franchise from people with felony convictions for all eternity. But

once 65% of the people of Florida decided that these returning citizens would be

allowed to exercise their right to vote upon “completion of all terms of sentence,”

see Jones II, 2020 WL 2618062, at *3, and the Florida Legislature set objective

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criteria for what it means to “complet[e] all terms of sentence,” a due-process

interest was born.

B.

The State, for what it is worth, does not seem to dispute that upon the

adoption of Amendment 4 and SB-7066, it created a due-process interest. Instead,

the State says its implementation of Amendment 4 does not “deny” the due-process

interest at stake. As the State tells it, the only time any interest in the right to vote

was implicated was upon a returning citizen’s original conviction.

However, the State confuses the right to enfranchisement with the right to

reenfranchisement. Deprivation of enfranchisement was lawfully done upon

conviction. But deprivation of the right to reenfranchisement occurs when a

returning citizen is stymied in his efforts to vote because he does not know when or

how he can complete all terms of his sentence. That is what the Plaintiffs allege

happened here, and what they proved in the District Court.

II.

We have thus far established that the State deprives returning citizens of a

due-process interest in the right to reenfranchisement when it deprives them of the

information necessary to exercise that right. Note that this principle does not turn

on returning citizens’ ability to pay or whether their outstanding legal financial

obligations (“LFO”) balance consists solely of court costs and fees. Of course, if

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the majority had agreed that the State’s implementation of Amendment 4 violated

the Equal Protection Clause or the Twenty-Fourth Amendment, those

considerations would be relevant. My point here is that the Plaintiffs’ due-process

claim should proceed no matter what, albeit in a slightly more limited fashion than

if they had also succeeded on their other constitutional claims.

Having established allegations amounting to the deprivation of a due-process

interest in reenfranchisement, I next examine whether the State’s process is, in fact,

inadequate. 1 Whether the State-provided process is constitutionally adequate

requires balancing “(A) the private interest affected; (B) the risk of erroneous

deprivation of that interest through the procedures used; and (C) the governmental

interest at stake.” Nelson v. Colorado, 581 U.S. ___, 137 S. Ct. 1249, 1255 (2017)

(citing Mathews v. Eldridge, 424 U.S. at 335, 96 S. Ct. at 903).

1

For the reasons expressed in Judge Jordan’s dissent, the majority is mistaken in its

framing of the due process question as one concerning a legislative, rather than adjudicative,

action. The Plaintiffs do not say Amendment 4, SB-7066, or the Florida constitutional provision

that strips individuals of the right to vote upon a felony conviction, see Fla. Const. art. VI, § 4(a),

were enacted without due process of law. This alone makes the majority’s reliance on Bi-Metallic

Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S. Ct. 141 (1915), misguided.

The majority also focuses exclusively on the removal of people from voter rolls in its analysis

under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). However, I view the scope of the

due process interest here to be much broader. People are deprived of a protected due process

interest when they cannot register to vote because they lack reliable information about their

outstanding balances. People are likewise deprived of a protected due process interest when they

don’t vote for fear of criminal prosecution while they wait for the Division of Elections to review

their voter registrations—a process that apparently takes years to complete. Meanwhile, elections

will come and go. Because the Division’s determinations are necessarily individualized and fact-

specific, Florida’s voter reenfranchisement scheme is one for which “persons [are] . . .

exceptionally affected, in each case upon individual grounds” and entitled to due process. See Bi-

Metallic, 239 U.S. at 446, 36 S. Ct. at 142–43. I reject the majority’s conclusion to the contrary.

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A.

Returning citizens have a strong interest in the right to reenfranchisement.

See Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1270 (11th Cir. 2019) (Jill

Pryor, J., concurring) (stating that interests that “implicate[] the right to vote” are

“substantial” (quotation marks omitted)). Florida’s only argument to the contrary

is that other citizens—those who are currently able to exercise their right to vote—

have a stronger interest at stake than returning citizens. As a result, Florida makes

what I view as the wacky argument that these other citizens’ right to vote will be

“dilut[ed]” if we recognize returning citizens’ interest in reenfranchisement. Reply

Br. of Appellant at 26. The language the State cites in support of its “dilution”

proposition comes from Reynolds, in which the Supreme Court held that

“[r]acially based gerrymandering” and “the conducting of white primaries” deny

“the right of suffrage” by “debasement or dilution.” 377 U.S. at 555, 84 S. Ct. at

1378. Reynolds simply reaffirmed the one person, one vote principle, and in no

way supports the idea that returning citizens’ interest in voting is somehow weaker

than the interest of anyone else.

B.

In order to register, returning citizens must know they have no outstanding

LFOs. Navigating this process implicates three distinct administrative concerns:

(1) determining the original LFO obligation; (2) determining the amount that has

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been paid; and (3) processing the voter registration. Based on Judge Hinkle’s

undisputed factual findings, all three steps of this process are rife with irrationality

and ineptitude. Thus, the risk of erroneous deprivation—that is, a returning citizen

who should be able to register to vote being waylaid in those efforts—is high.

1.

First, the State’s inability to determine the amount of disqualifying LFOs

imposed creates a risk of erroneous deprivation. As Judge Hinkle found,2 “many

felons do not know, and some have no way to find out, the amount of LFOs

included in a judgment.” Jones II, 2020 WL 2618062, at *16. For instance, Dr.

Traci Burch, an expert for the Plaintiffs, testified about her efforts “to obtain

information on 153 randomly selected felons.” Id. at *17. Judge Hinkle credited

Dr. Burch’s testimony that information about original LFO obligations was hard to

track down and, when it was possible to obtain, “there were inconsistencies in the

available information for all but 3 of the 153 individuals.” Id.

Even if Florida were correct that felons convicted in state court “can [easily]

access their sentencing records directly through the County Clerks’ office,” Br. of

Appellant at 54, further complications arise. For one, “[m]any counties charge a

fee for a copy of a judgment,” which Judge Hinkle found many felons cannot

2

The District Court’s findings of fact are, of course, reviewed for clear error. U.S.

Commodity Futures Trading Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018).

And the State’s briefing does not argue that any of the facts relevant to this claim were erroneous.

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afford to pay. Jones II, 2020 WL 2618062, at *17. For another thing, older

judgments can be hard, if not impossible, to find. See id. Finally, “[e]ven if a

felon manages to obtain a copy of a judgment, the felon will not always be able to

determine which financial obligations are subject to the pay-to-vote requirement.”

Id.; see also id. at *18 (“18 months after adopting the pay-to-vote system, the State

still does not know which obligations it applies to. And if the State does not know,

a voter does not know.”).

All these requirements lead to the conclusion that it “is sometimes easy,

sometimes hard, sometimes impossible” for a returning citizen to figure out his

original LFO obligation. See id. Without this information, these citizens can

hardly be expected to know how much they have to pay off.

2.

Second, even if a returning citizen is able to determine his original LFO

obligation, then “[d]etermining the amount that has been paid on an LFO” is

likewise “often impossible.” Id. at *18.

The State, pointing to its advisory-opinion system for voter eligibility, says

the Plaintiffs cannot complain about the inability to determine LFO obligations

because, since the enactment of SB-7066, only about 30 members of the public

have made inquiries of the Florida Department of State about “voter eligibility

with regards to financial terms of sentence.” Br. of Appellant at 55. This is beside

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the point. Although the State offers the advisory opinions as a panacea, it explains

in its briefing that these advisory opinions actually only give a returning citizen “a

legal determination on whether he would violate the laws against false registration

and fraudulent voting by registering and voting given the facts and circumstances

attendant to his case.” Id. The Department of State’s current advisory-opinion

process does not promise returning citizens accurate information about their

outstanding LFOs.

And in any event, this record shows the precise amount of payments made is

“sometimes easy, sometimes hard, sometimes impossible” for a returning citizen to

determine. Id. at *21, *23. The District Court discussed a number of examples of

returning citizens struggling mightily to calculate their outstanding LFO balance.

One named plaintiff, Clifford Tyson, contacted the Hillsborough County Clerk of

Court to help him determine his outstanding LFO balance. Id. at *20. The District

Court recounted that it took the Clerk of Court’s “financial manager” and “several

long-serving assistants” 12 to 15 hours to come up with an answer. Id. Even at the

end of that painstaking process, nobody was able “to explain discrepancies in the

records” that surfaced. Id.

Under the majority’s decision, it remains incumbent on the person seeking to

vote to bring all relevant “facts and circumstances” to the State’s attention,

including the amount of his outstanding LFOs. To the contrary, I believe the State

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has an obligation to give accurate information to its citizens about how much it

believes they must still pay to discharge their obligations under SB-7066. This is

particularly so, in light of the State’s idiosyncratic “every-dollar” method of

calculating payment. Under this method, all payments made in relation to an LFO

are to be counted toward the outstanding balance of a criminal sentence, even if a

portion of the payment has in fact been allocated elsewhere in the payment

process. See id. at *21. So it is the State’s position, adopted by the majority, that a

returning citizen can qualify to vote if he has paid the amount assessed in his

sentencing document, but still has outstanding LFOs if any portion of his payments

were, say, pocketed by a debt collection company. As I understand it, this “every-

dollar” method is not the mode of accounting any local government uses for any

purpose. This is likely because the calculation method was devised midway

through this case, apparently as a litigation strategy, and seems completely

divorced from how LFO remittances actually work. But, because no formal policy,

rule, or statute in Florida provides for the tracking of “every dollar” paid, for many,

this “fact” the State demands to know is simply unknowable. This result cannot

comport with due process.

Take, for example, Betty Riddle, one of the named plaintiffs in this case.

Ms. Riddle requested copies of her felony records from the Clerks of Court in the

two counties of her convictions, which date between 1975 and 1988. Jones II,

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2020 WL 2618062, at *6. However, she was told the Clerks were unable to find

records of the convictions. Id. Ms. Riddle believes she owes approximately

$1,800 in connection with later convictions, but the Clerk’s records do not match

those maintained by the Florida Department of Law Enforcement. Id. Even as a

party to this litigation, Ms. Riddle does not know, and has been unable to find out,

how much she must pay to vote. Id. This process has all the certainty of counting

jellybeans in a jar. Under the majority’s holding, it is entirely consistent with due

process that Ms. Riddle cannot access her right to vote, because she does not, and

cannot, know how much she needs to pay, even if she could pay.

There is no reason to think Ms. Riddle’s situation is unique. For several of

the named plaintiffs— Jeff Gruver, Emory Marquis Mitchell, Keith Ivey,

Kristopher Wrench, Jermaine Miller, Clifford Tyson, Latoya A. Moreland, and Lee

Hoffman—the District Court noted discrepancies in available records or lack of

definitive information regarding what they owed. Id. at *6–9. And again, in a

random sample of 153 individuals with felony convictions reviewed by a research

team, all but three had inconsistencies in the available information regarding their

LFOs. Id. at *17. People who make a bona fide effort to satisfy their LFOs may

nevertheless face the risk of criminal prosecution if the records they relied on in

tallying “every dollar” paid are inaccurate or do not exist. Florida’s

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reenfranchisement scheme, which demands potentially unknowable facts, does not

comport with due process.

3.

Then there is also the processing of voter registrations, another

administrative quagmire. To be eligible to vote in Florida, one must submit a

registration form. Simple enough. But the process that follows is anything but. If

the county Supervisor of Elections deems the form complete on its face, then the

Secretary of State’s Division of Elections takes up the task of deciding whether the

person is real, and, if so, adds that person to the voting roll. In the meantime, and

periodically for years thereafter, the Division of Elections reviews registrations for,

among other things, disqualifying felony convictions. A person who is uncertain

of her eligibility to vote—say, because she does not know whether she has satisfied

her LFOs to the State’s satisfaction—may choose to wait for the Division of

Elections to complete its review process. Then if the Elections Division finds that

a person is disqualified for any reason, including unpaid LFOs, the Division is to

notify the proper county Supervisor of Elections. Some Supervisors review the

Division’s work for accuracy, but some do not. Then the Supervisors begin the

process of removing people from the voter rolls.

All of this review takes time. In light of the chaos created by the majority’s

holding that LFOs must be satisfied according to the “every-dollar” method,

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countless scores of individuals will be uncertain of their eligibility to vote. At the

time of the trial, the Florida Division of Elections had identified more than 85,000

registered voters with felony convictions whose eligibility had to be screened. The

District Court made a finding of fact, unchallenged by the State, that it will take

until 2026 at the earliest, and possibly even into the 2030s, for the State to

complete its eligibility determinations. Id. at *24. Some registered voters are

undoubtedly eligible to vote. But again, uncertainty will cause some segment of

eligible voters not to vote, lest they risk criminal prosecution. This delay and

uncertainty attendant in Florida’s voter registration processing system also fails to

satisfy due process. 3

C.

Finally, I observe that the State has offered no countervailing interest to

justify the denial of procedures sufficient to permit the reenfranchisement granted

by Amendment 4. To be sure, “the Government’s interest, and hence that of the

3

The majority opinion says the 85,000 people who are waiting to be screened are “entitled

to vote.” This statement is not consistent with the evidence as well as Florida’s litigation position

in this case. The Division of Elections Director testified that she herself would not feel comfortable

taking an oath that she was eligible to vote if she were in the shoes of a returning citizen who was

unsure of the amount they owed. The wisdom reflected by her discomfort is demonstrated by at

least two things. First, Florida argues to us he

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