“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
That is how Supreme Court Chief Justice John Roberts criticized President Trump in 2018 after one of Trump’s many tantrums over federal “Obama judges” blocking his immigration policies. As chief justice, Roberts plays an important role in maintaining the very thinly veiled facade of impartiality and decorum in the courts. That facade is why judges wear robes, why lawyers say “Your Honor,” why at confirmation hearings, to-be-justices say with a straight face that judicial decisions are “never about politics — only the law’s demands,” and why, unlike Trump, proper liberals toe that supposed line.
It’s hard to take this seriously when we all openly talk about the conservative and liberal wings of the Supreme Court. And it gets harder when, two months before the 2020 election, five Trump(-appointed) judges join a Bush(-appointed) colleague to uphold a poll tax on people with felony convictions in a swing state that has disenfranchised approximately a fifth of its black voters.
Many critics have rightly slammed the 11th Circuit Court of Appeals’ decision in Jones v. Florida as a tour de force of judicial partisanship and careerism. As a legal writer, I sympathize with the primary dissent’s observation that “[s]o much is profoundly wrong with the majority opinion that it is difficult to know where to begin.”
But while we can’t take Roberts’s lofty words seriously, we also can’t pretend that poll taxes and disenfranchisement began or will end with “Trump judges.” Six million people — that’s one estimate of how many voters with felony convictions are disenfranchised in the United States. The Jones decision is not an outlier. It falls neatly in line with decades of bipartisan disenfranchisement of poor and black people through the veneer of law and order. This is how a poll tax becomes a law.
The Steep Price of Re-Enfranchisement
Like most states, Florida has always disenfranchised people convicted of felonies. In 2018, voters passed a constitutional amendment (on the ballot as “Amendment 4”) re-enfranchising those people, with two major exceptions. First, the crime must not have been murder or a felony sexual offense. Second, the person must have “complet[ed] all terms of sentence including parole or probation.”
Having lost the battle to stop this partial reform, Republicans got to work expanding the exceptions.
The Republican-controlled government enacted SB 7066, which defined “all terms of sentence” in the second exception as including not just fines and restitution, but also court fees. Then, after a request from Governor Ron DeSantis, the Florida Supreme Court (stacked with Republican-appointed justices) effectively matched 7066 by interpreting “all terms of sentence” to include all “legal financial obligations” (LFOs).
In Florida, court fee LFOs include, among many others, a $50 application fee and $100 minimum assistance fee for a public defender (who, yes, represent people without money), a $100 minimum cost of prosecution fee, a $50 per month probation fee (for people found indigent; otherwise it averages around $100), a 4 percent administrative fee, and, incredibly, a $25 plus $5 per month fee to enroll in a payment plan. Of course, there are also the criminal fine LFOs, like up to $5,000 for the third-degree felony of drug possession (which includes a single prescription drug without a prescription); there’s also a potential court fee for a matching amount, to fund drug abuse programs.
All of this adds up, especially for the poor people more likely to be criminalized. One study found that 80 percent of the over one million people in Florida have otherwise completed the terms of their sentence owe LFOs, and of them, 60 percent owe more than $1,000, even with the payments they have already made. (We Got the Vote has begun raising money to pay off disenfranchised voters’ fines and fees in Florida.)
And all of this just takes the re-enfranchisement process (pay up, and you can vote) at face value. The reality, as a federal court put it, has been an “administrative train wreck.” Florida does not know who owes LFOs — or how much. It has provided incorrect information on those amounts and has screened zero (yes, zero) of the 85,000 voter registrations submitted from potentially re-enfranchised people. The government’s own lawyer admitted in court that it “did not get its act together.” Florida’s top election official admitted that her own staff is not trained to read sentencing documents to determine LFOs, and that if she was a potentially re-enfranchised person, she would be uncomfortable with voting for fear of prosecution.
Modern-Day Poll Tax
Disenfranchised people sued in federal court, arguing that SB 7066 and Amendment 4 (as interpreted by the Florida Supreme Court) were unconstitutional in three ways. First, under the Equal Protection clause of the 14th Amendment, for discriminating against poor people. Second, under the 24th Amendment, which abolished poll taxes. And third, under the Due Process clause of the 14th Amendment, for the vague and confusing reenfranchisement process.
Why did they lose in Jones? For one, they faced a rich, partisan, and careerist bench that did not care or want to care about their struggles. What’s a thousand dollars in fees when, like Judge Barbara Lagoa, you’re worth over $850,000? And what’s the disenfranchisement of a few hundred thousand people when you’re in line for a seat on the Supreme Court? Like her colleagues in the Jones majority, Lagoa was appointed by Trump (except the Bush appointee) and is a member of the conservative Federalist Society.
As part of her audition for the Supreme Court, Lagoa wrote an eighteen-page concurring opinion in Jones that did little beyond repeating arguments from the majority except to celebrate the failure of previous civil rights challenges to disenfranchisement in Florida and provide incredible legal insights such as this one: “‘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. 2000) (same).” (In the next sentence, she also defined “complete.”)
The second way is to take the legal analysis at face value. For lawyers, that means getting into the details of the two hundred pages of opinions in the Jones case, which includes twenty pages on whether “by reason of” and “on account of” mean the same thing.
More generally, while the dissent rightly criticizes the majority for completely ignoring the damning facts about Florida’s LFOs and its “administrative train wreck,” the reality is that the Fourteenth Amendment and Supreme Court precedent expressly allow disenfranchisement for crimes. The dissent responds by pointing to the 1969 McDonald v. Board decision, where the Supreme Court said that when it comes to voting rights, “careful examination . . . is especially warranted where lines are drawn on the basis of wealth or race.” Given that Florida has disenfranchised approximately a fifth of its Black voters (yes, a fifth: five hundred thousand people), a wealth-based re-enfranchisement process should be suspect.
But McDonald, written by the famous Chief Justice Earl Warren for a unanimous Court, denied an Equal Protection challenge against Illinois’s refusal to give absentee ballots to people jailed before trial. That brings us to the third way of understanding Jones, which is to see its function — in legal doctrine and real-world impact — as part of an updated form of disenfranchising poor and working-class people, especially people of color, Supreme Court precedent and all. Decisions like Jones and McDonald illustrate how, as Michelle Alexander put it, “[t]he criminal label is essential, for forms of explicit racial exclusion are not only prohibited but widely condemned.” When it comes to re-enfranchisement processes like Florida’s administrative train wreck, she points out that “[t]hese bureaucratic minefields are the modern-day equivalent of poll taxes and literacy tests” under Jim Crow.
So, yes, we obviously do have “Trump judges.” But the problem is not simply partisanship on the bench. Earl Warren and Thurgood Marshall (who joined the unanimous Court in McDonald) helped plant the seeds for the disenfranchisement of six million people today, and they were not Trump judges. The problem runs deeper, and as we fight over the courts in the coming months, we will need solutions that run just as deep.