Court allows only rich felons to vote

The truism that elections have consequences has been proved yet again to dreadful effect in a federal appeals court decision denying the right to vote to some 775,000 Floridians who have paid all their debts to society except for fines, costs and restitution that many cannot afford.

It means that wealthy criminals may vote in Florida once they’re out of prison or off probation, but poor ones can’t. It doesn’t matter, the court said, that the state can’t even tell most ex-felons what they owe.

For such an outcome to occur under the Constitution of the United States reflects how the federal appeals courts, like those in Florida, are being radicalized into instruments of right-wing ideology. Six judges appointed by Republican presidents opposed voting rights. Four judges appointed by Democratic presidents comprised the minority.

The Atlanta-based Eleventh U.S. Circuit Court of Appeals, which did this terrible thing, is the successor to the old Fifth Circuit, which heroically enforced desegregation and voting rights in the 1950s and 1960s. The Eleventh’s website bears a tribute to Judge Elbert P. Tuttle, a mainstay of that old court. He was a Republican in an age when his party stood for civil rights rather than against them. He would be revulsed if he could see what has happened since.

How did it go so wrong?

Elections have consequences. So does every single vote.

It was by only 537 votes out of nearly 6 million cast in Florida in 2000 that George W. Bush won the presidency and the power to appoint Judge William H. Pryor Jr., who wrote the 11th Circuit’s majority opinion in the Florida voting case.

Pryor’s civil rights record as Alabama’s attorney general was so controversial that it took two years and a cross-party deal in the Senate to get him confirmed.

In the 2016 election, some 105,000 votes across three key states, out of 136 million cast nationally, gave Donald Trump the presidency even though he, like Bush, had lost the popular vote.

With the presidency came the power to appoint right-wing judges like Barbara Lagoa and Robert Luck, whom he put on the Eleventh Circuit last year. They cast the deciding votes to overturn the well-documented findings of U.S. District Judge Robert Hinkle in Tallahassee that Gov. Ron DeSantis and the Florida Legislature had violated the U.S. Constitution in how they implemented Amendment 4, the 2018 initiative to restore the vote to nearly a million Floridians barred for life by convictions for any felony, however small.

Neither Lagoa nor Luck should have taken any part in the Florida case. Both had heard similar arguments as DeSantis appointees to the Florida Supreme Court before Trump escalated them to the federal bench. All 10 Democrats on the U.S. Senate Judiciary Committee called on them to step aside. They refused, with the excuse that it was a different case even if the issues were alike.

During the Tallahassee hearing, Lagoa was conspicuously hostile to the ex-felons’ case and asked more pointed questions than any other justice. She went to the federal court with an undisguised bias on the issue.

Two days before the Eleventh Circuit’s decision was published, Trump added Lagoa to his roster of potential Supreme Court nominees, along with Carlos Muñiz, another right-wing Florida justice. Already on the list were two other Eleventh Circuit judges who voted the party line last week.

The 5.1 million Floridians who favored Amendment 4 two years ago probably did not expect how strictly DeSantis and the Legislature would implement it. Unfortunately, the amendment’s wording did leave too much to chance by requiring ex-felons to fulfill “all terms” of their sentences before voting.

But the U.S. Constitution is paramount, and Florida should have found a way to accommodate ex-felons who are genuinely unable to pay fees that, as Hinkle noted, are used to augment taxes in the operation of the courts. That makes them a poll tax if they become a condition of voting. Pryor’s opinion did not agree.

Lagoa joined Pryor in a concurring opinion that says felons have other ways to regain their voting rights. But the main remedy is one that Lagoa, as a Floridian, should know is a Catch-22. The governor and Cabinet have the power to restore voting rights, but both DeSantis and his predecessor, Rick Scott, have refused to consider more than a few hundred cases a year out of the tens of thousands of pending cases.

Pryor and Lagoa also observed that ex-felons may have their debts converted to community service, modified by a court or forgiven — really? — by those to whom they owe restitution. But those are painfully slow ways to restore the civil rights of nearly a million people.

Hinkle held that the Constitution allows Florida to require would-be voters to pay some of those debts, but not if they can’t afford to or if Florida’s can’t tell them what they owe.

The Eleventh Circuit’s dissents were long and biting.

“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 … and which ultimately throws up its hands and denies citizens their ability to vote because the state can’t figure out the outstanding balances it is requiring those citizens to pay,” wrote Judge Beverly C. Martin for herself and three others.

When 65 percent of Florida voters approved Amendment 4, she concluded, “Florida gained an obligation” to help returning citizens to vote, “and to notify them of their eligibility in a prompt and reliable manner.”

In a separate opinion by Adalberto Jordan, an Obama appointee from Florida, the dissenters said that “so much is profoundly wrong with the majority opinion that it is difficult to know where to begin.”

That was a good way to put it.

Jordan’s dissent closed on a historical note.

The Fifth Circuit, he wrote, “has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. … I doubt that today’s decision — which blesses Florida’s neutering of Amendment 4 — will be viewed as kindly by history.”

It should not. It will not. Nor should Florida voters see it that way when they decide whether to keep or replace the president who is responsible for it, and who says he might even put Lagoa on the U.S. Supreme Court.