WASHINGTON (CN) — Turning down felons whose chance to vote again is nearly in reach, the Supreme Court refused Thursday to vacate a stay that keeps them from registering in time for the upcoming presidential race.
There are just over 100 days until Election Day, but the 11th Circuit halted voter registration for Florida felons two weeks ago at the request of Republican Governor Ron DeSantis.
The case stems from a law the state put in place last year after citizens adopted an amendment to the Florida Constitution restoring voting rights to any felon who served their full sentence, unless they were convicted of murder or felony sex offenses.
Though Amendment 4 opened the door to nearly a million voters who would have otherwise been precluded from participating because of their criminal pasts, the law SB 7066 required felons to pay any outstanding restitution, fines or fees before being eligible to vote.
Florida is a key battleground state, and the American Civil Liberties Union, the NAACP and the Campaign Legal Center joined together in a lawsuit to have SB 7066 struck down.
A federal judge agreed that Florida had created an illegal “pay-to-vote system,” but the 11th Circuit stopped the state from enrolling new voters until the full court hears the case on the merits.
After the Supreme Court declined to vacate that stay Thursday, the Campaign Legal Center blasted the court for sowing “chaos” in a matter that voters have already decided.
The unsigned order includes a dissent from the court's three female justices, but no majority opinion.
“The court’s inaction continues a trend of condoning disenfranchisement,” wrote Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ruth Bader Ginsburg.
Emphasizing that Florida’s voter-registration deadline is a mere four days away, the women said the failure to intervene keeps “thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”
Emphasizing that Florida’s voter-registration deadline is a mere four days away, the women said the failure to intervene keeps “thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”
Historically, the Supreme Court is unlikely to weigh in on voting-rights cases when an Election Day is so near, a position established under Purcell v. Gonzalez in 2006 when the court declined to extend absentee voting after a Wisconsin judge abruptly reversed course on an earlier ruling that favored it.
Citing the risk of “voter confusion,” that ruling said any court-issued order affecting elections and more specifically, conflicting ones, should be avoided.
But Sotomayor said it was the 11th Circuit that sowed any confusion. To her mind, the harm to potential voters’ rights is so great that action is plainly necessary based on other historic precedent, specifically the 1976 case, Coleman v. Paacar Inc.
There, it was found that a stay must also consider the likelihood of success on the merits.
“This case easily meets the first two Coleman prongs,” Sotomayor wrote. “By the District Court’s count, ‘nearly a million’ persons are barred from voting because of Florida’s alleged wealth discrimination, inscrutable processes, and tax. A case implicating the franchise of almost a million people is exceptionally important and likely to warrant review. And there is no question that these people would suffer irreparable harm were they denied the vote or ‘incentiv[ized] to remain away from the polls’ because of the Eleventh Circuit’s conflicting orders or Florida’s threat of prosecution.”
Florida, by contrast, failed to show any comparable injury it might experience by allowing felons to vote.
Sotomayor called this especially egregious given that the very remedies Florida now contests are existing state procedures.
“Ironically, this court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety related changes supposedly came too close to Election Day,” Sotomayor wrote. “Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disenfranchisement — a situation that Purcell sought to avoid — the court balks.”
Paul Smith, vice president of the Campaign Legal Center, said he was deeply disappointed with the decision Thursday.
“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”
A representative for Governor DeSantis’ office did not immediately return a request for comment.
This isn’t the end of the road, however, for ex-felons in Florida who wish to vote.
“The courts have repeatedly ruled the Florida law is unconstitutional,” Julie Ebenstein, senior staff attorney for the ACLU Voting Rights Project, said in a statement. "The appeals court’s stay is only in effect while the appeal is ongoing. The case will be heard August 18, and we are hopeful that the appellate court will uphold the trial court’s decision, protecting the right to vote for hundreds of thousands of Floridians in time for the November election."
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