CALLING BALLS AND STRIKES: IS THE UMPIRE BLIND?

In 2013, the Supreme Court of the United States knee-capped the country's effort to combat the Jim Crow voting restrictions in many southern states. The Republicans won a major victory when the Court struck down the effective part of the Voting Rights Act that prevented disenfranchisement maneuvers such as closing voting polling places in black neighborhoods, purging blacks from voter rolls, and the like.

The rationale of that devastating decision? No, the Court did not find the Voting Rights Act violated the Constitution. To put it in plain English, the conservative majority donned its legislative hat and ruled that inasmuch as the Act was thirty years old, and, things may have sorta changed since then, we'll strike it down and see if this Congress wants to re-enact it! 

(Oh, yeah, I should mention that the vote was 5-4, the opinion was written by Chief Justice Roberts, and the Republicans, with a 33-vote majority in House, did not accept the Court's invitation and did not re-enact the stricken parts of the Act.)

Fast forward to the year 2020, and the Republican president is in trouble. As ever, Florida is a key state, and as ever, its administration of the voting process is chaotic and highly partisan.

In 2018, the voters, in a landslide referendum, (65-35) amended the state constitution, and gave the vote back to felons who had satisfactorily completed "all terms of their sentence, including parole or probation." The effect of this change was seismic.  Estimates of the number of new voters created by the amendment ranged from 750,000 to 1,500,000. And the overwhelming majority of these new voters are black!

Given that Trump carried the state by only 113,000 votes in 2016, it is not hard to see the panic this created in the Republican leadership in the state.

Desperate times calls for desperate measures, and the Republican legislature, facing an existential loss of political power, thumbed its nose at the voters and promptly passed a bill (which Republican Governor DeSantis promptly signed) designed to gut the constitutional amendment. It provided that the phrase "completion of all terms of their sentence, including parole or probation" required full payment of "all fines, including costs and fees."

Further, it provided that any felon who voted without complying was guilty of a felony!

A combine of lawyers (I am happy to report this included my law firm, Paul, Weiss, Rifkind, Wharton & Garrison) immediately attacked the statute, and a federal district court judge entered a temporary injunction against its enforcement. The State appealed, and a three-judge panel of the 11th Circuit unanimously affirmed the temporary injunction.

After a full trial, on May 20, 2020, the District Court again found for plaintiffs, and entered a final injunction against enforcement of the statute. The District Judge found, as a matter of fact and law:

1. The requirement that potential voters needed to pay a fine, or a "cost" taxed in their criminal case was, in effect, a poll tax, and was barred by the 24th Amendment: "The right...to vote...shall not be denied or abridged...by reason of failure to pay any poll tax or other tax."

2. The statute was a violation of Equal Protection and Due Process clauses of the Constitution because many felons were impecunious. And further, even if they had money, they had no ability to learn whether they owed any money related to their convictions. Not by phone, by text, email, any form of communication, could they learn from the state, or any other source, whether money was due or not. Thus, they risked felony prosecution if they voted and it was later established there was an unpaid fee.

The state conceded it could not determine whether money was owed. The evidence suggested the state had no mechanism to make any such determination, and a proposed method to gather that information and apply it to the voting process could not be completed before 2026 at the earliest! But the felony provision was not abated by the state's inability to determine whether a fee was due or not.

The District Court ruling striking down the statute was clearly correct, non?

But in an extraordinary procedure, the state went back to the 11th Circuit, and won an en banc order, staying the District Court's injunction! For the non-lawyers in the crowd, this  means that unless some appellate court reverses the stay, despite the District Court's final injunction striking down the statute, it remains in full force and effect, and any felon who votes does so at the risk of being found guilty of a felony!

(Did I mention that six of the twelve judges on the en banc Eleventh Circuit court were appointed by President Trump?)

Outrageous, you say? Let's take an appeal from that stay! Let's go to the Supremes! We'll ask em to reverse that stay!

After all, two of the conservative Justices who knee-capped the Voting Rights Act are no longer on the Court!

Ahh, but Scalia and Kennedy have been replaced by Gorsuch and Kavanaugh. And two days ago, in an unsigned opinion, a majority of the Court refused to lift the stay.  Why? Not because the eleventh circuit was wrong, but because the Supremes do not like to decide election laws close to an election! This is another in a disturbing line of Supreme Court decisions favoring disenfranchisement of Democrat-inclined voters.

Bottom line, the Eleventh Circuit en banc court will hear arguments on August 18. That means the newly-enfranchised felons have already missed the opportunity to vote in the primaries, and the likelihood of their getting registered and voting by November 3 is exceedingly slim.

Let's hear it for our Constitutional Democracy.

A bientot.

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