Civil rights veterans argue against Florida voting law

By Dara Kam
News Service of Florida

In the latest twist in a legal battle over voting rights in Florida, three dozen former Department of Justice attorneys are asking a federal appeals court to side with plaintiffs in a case that could determine whether hundreds of thousands of felons can cast ballots in the November presidential election.

The attorneys include some of the men who helped convince the nation to outlaw “poll taxes,” which were designed to prevent Black and poor people from voting.

The 37-page brief filed last Monday includes a history of the litigation surrounding discriminatory voting laws that led to the passage of the 24th Amendment to the U.S. Constitution in 1964, the Voting Rights Act of 1965 and seminal U.S. Supreme Court decisions thwarting states from skirting the constitutional amendment’s prohibition against poll taxes.

The civil-rights attorneys said a Florida law requiring felons to pay “legal financial obligations” — fees, fines, costs and restitution — associated with their convictions is a blatant violation of the amendment.

The 24th Amendment prohibits states from conditioning the right to vote in federal elections on the payment of a “poll tax or other tax,” the attorneys, some of whom are in their 80s and 90s, argued in what is known as an “amicus,” or friend-of-the-court, brief.

“Congress and the Supreme Court have recognized that the Constitution bans sophisticated, shifting schemes making payment of a tax a precondition for voting. Though cloaked in new labels, Florida’s pay-to-vote system is simply another poll tax substitute imposing a financial bar to voting that the Constitution bans and that courts rejected long ago,” Olivia Kelman, Steven Weinstein and Victoria Oguntoye of the K&L Gates LLP law firm wrote on behalf of the former Department of Justice officials.

Attorneys involved in the brief include former officials at the Department of Justice’s Civil Rights Division, including those who were involved in litigating the legality of preconditions to registration and voting in the early 1960s, and attorneys who represented the department.

“Although the lawsuits were ultimately successful, they were almost always followed by new laws and procedures drawn to accomplish the same purpose as those just invalidated — unconstitutional restrictions of registration and voting,” Kelman noted.

The brief came in the state’s appeal of a May decision by U.S. District Judge Robert Hinkle, who found the 2019 Florida law requiring felons to pay financial obligations to vote is unconstitutional.

The law, approved by Republican legislators and signed by Gov. Ron DeSantis, was aimed at implementing a 2018 constitutional amendment that restored voting rights to felons “upon completion of all terms of sentence, including parole or probation.”

The Atlanta-based 11th U.S. Circuit Court of Appeals has scheduled arguments in the case for Aug. 18, the same day as Florida’s primary elections. The appellate court also put Hinkle’s decision on hold until the appeal is finished and granted DeSantis’ unusual request for an “en banc,” or full court, initial review of the state’s appeal. Three-judge panels almost always conduct initial reviews.

The who’s who of voting-rights attorneys who signed onto last Monday’s brief include Stephen Pollak, Brian Landsberg, John Rosenberg and Alexander Ross, who prepared and tried a seminal poll-tax case known as Harper v. Virginia Board of Elections as counsel for the United States. Other lawyers who joined the brief have experience litigating elections-related lawsuits prior to the passage of the Voting Rights Act in 1965. Other former DOJ lawyers named in the brief include former Massachusetts Gov. Deval Patrick, an assistant U.S. Attorney General for Civil Rights from 1994-1997; Joseph D. Rich, the chief of DOJ’s Voting Rights Section from 1999-2005; and Gerald W. Jones, another former voting-rights section chief.

The former Department of Justice attorneys’ arguments were one of several friend-of-the-court briefs filed on behalf of the plaintiffs. Attorneys general from 20 states, law professors and political science scholars also filed briefs in the case.

DeSantis’ lawyers maintain that the Florida law properly carries out the language of the constitutional amendment and the intent of its backers.

But the former Department of Justice attorneys said Hinkle “properly concluded that Florida’s requirement that felons pay fees and costs associated with their case to be eligible to vote is properly classified as a tax.”

The lawyers also rejected the state’s argument that the 24th Amendment doesn’t apply to convicted felons because states have the right to ban felons from voting.

“Accepting Florida’s position would sanction legislation requiring felons to be current on property taxes or any other paywalls to voting — so long as they apply only to felons. That makes no legal sense. Florida must abide by all provisions of the Constitution even as it takes action to restore voting rights,” Kelman wrote.

The attorneys who filed the friend-of-the-court brief have “first-hand experience on the front lines of the battle against shifting discriminatory devices,” including four years of litigation in Selma, Ala., in cases that are the “pre-eminent example” of how states enacted statutes to thwart federal anti-discrimination laws, the brief said.

Even after the 24th Amendment passed, Congress specifically included provisions aimed at ending poll taxes in the Voting Rights Act of 1965, the attorneys argued.

One of the major provisions of the act required jurisdictions with histories of racial discrimination to receive federal approval, or “preclearance,” before making changes to their elections laws.

Collier, Hardee, Hendry, Hillsborough and Monroe counties in Florida were subject to the preclearance requirements.

Other provisions in the 1965 law allowed the Department of Justice “to ensure that pay-to-vote schemes did not resurface under different banners after eliminating the formal poll tax,” the civil-rights lawyers’ brief noted.

But in a 2013 decision in a landmark case known as Shelby County v. Holder, the Supreme Court did away with the preclearance requirements and gave federal courts the role of analyzing state prerequisites to voting, Kelman wrote.

Hinkle “saw this voter paywall for what it is and correctly held that (1) court fees and costs constitute ‘taxes,’ and therefore (2) the 24th Amendment precludes Florida from conditioning voting in federal elections on payment of such amounts,” she argued.