NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 5th of October, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Well, Nick, here we are! First Monday in October.
EICHER: It’s like a baseball fan: Opening day
Except you’re a fan of the law: The first day of the new term of the U.S. Supreme Court.
REICHARD: Exactly. Except this time the mood is both full of anticipation, yet a little somber.
The late Justice Ruth Bader Ginsburg’s voice will be missing. That makes for a poignant start to this term.
Meanwhile, President Trump’s nominee to fill the seat is preparing for her confirmation hearing. Judge Amy Coney Barrett will miss the early oral arguments, unless she’s listening by phone, as the 8 justices will be doing. This term begins as the last one ended: oral arguments by phone, out of an abundance of caution to minimize the risk to the justices of COVID-19.
EICHER: You know, this moment is somewhat reminiscent of a movie from 1981, First Monday in October. At least, in one aspect: the tenor of what’s to come. One can hope.
In this scene, the fictional Justice Dan Snow, a liberal, gives the eulogy for a colleague who’d died unexpectedly. He offers some words for Justice Stanley Morehead, a conservative.
You’ll hear actor Walter Matthau as Justice Snow:
MATTHAU: Stanley Morehead was a gentleman of honest mind. You can’t say that about many men in this city in this century. Stanley and I were like a pair of flying buttresses. Leaning against opposite sides of a Gothic cathedral, we helped keep the roof from caving in. If we’d both been on the same time all the time we might have pushed the building over. You don’t have to agree with a man in order to respect him.
“You don’t have to agree with a man in order to respect him.”
REICHARD: That’s a great idea. I do think the justices of the Supreme Court model how to disagree. With dignity. At least most of the time.
I listen to each of the oral arguments, choose pertinent audio from the justices and advocates, and then bring you analysis each Monday. I’ll do that starting next week.
And you’ll hear something about every single oral argument this term.
EICHER: This is a good time to mention that if you want to hear a preview of coming cases, listen to the final episode of the Legal Docket podcast. Mary and Jenny Rough highlight several of the upcoming cases there. Good summary of some cases worth paying attention to in the coming months.
Well, for today: voting rights.
Legal skirmishes are going on across the country over who can vote, and when and where. Just this past Thursday, South Carolina officials filed an emergency request with the Supreme Court, asking it reinstate the witness requirement for absentee ballots. Lower courts had tossed out this anti-fraud measure during the pandemic.
REICHARD: Let me tell you now about Florida. In that state, there’s an ongoing dispute over voting rights for felons. And this isn’t just a legal battle; it’s political, with the latest development coming just ahead of the November 3rd election. The Supreme Court declined to intervene over a Florida law that effectively denies felons the vote. Their lawyers had filed an emergency request for help.
EICHER: Let me give you a bit of background.
Two years ago, Florida voters passed Amendment 4. That restored voting rights to felons, except for felons convicted of murder or sexual assault.
The wording of Amendment 4 wasn’t altogether clear. It said that felons could get their voting rights restored, quote, “upon completion of their sentences.”
REICHARD: And that’s where things got complicated. What does “complete the sentence” entail? Time, money, both, either?
A year later, Florida passed a law that interprets “complete the sentence” to mean that a felon must pay off time and money obligations arising from a conviction. Including fees and fines.
Civil-rights groups sued on behalf of the felons, arguing this amounted to a poll tax. That would violate the 24th Amendment of the U.S. Constitution, which forbids denying the vote by reason of failure to pay a tax.
They won in District court, then lost at the 11th Circuit Court of Appeals. And the Supreme Court let that stand.
I talked to two lawyers in the know.
One is James Bopp. He’s litigated election disputes across the country. He explains why requiring felons to pay up before they vote is not against the law.
BOPP: The answer to that, according to the en banc 11th circuit, was that this is not a tax. These court costs, fines and restitution are not taxes. They’re conditions that seek to ensure that the felon pays back their debt to society. And that debt includes the costs that have been incurred by the state to prosecute the felon and also restitution to the victim. So they’re not taxes.
That view says being restored to full citizenship requires that a felon first should pay back his full debt to society.
But lawyer Jonathan Diaz says it’s not so simple. He’s with the Campaign Legal Center and represents some of the felons challenging the law. He described three clients he represents out of the 17 individual plaintiffs:
DIAZ: One is a Democrat. One is a Republican and one is a registered independent. And all three of them are, you know, fully contributing members of their communities. They have kids and grandkids, in some cases. They’re active in their churches and in their workplaces. They are parts of their communities in every way, but this one. And they just want, you know, they just want to have a say in the election of, of their leaders and in the running of their government.
Of course, Diaz’ clients are a small sampling of the group, of course. According to 60 Minutes, the felons who had registered to vote a few months after Amendment 4 passed were mostly Democrats.
And that aspect is what James Bopp saw as onerous:
BOPP: Well, there’s an overarching thing that’s going on within the Democrats and their lawyers: they have a strategy, which is to create as much chaos as possible surrounding this election. So they have brought almost 200 lawsuits, you know, against many States to try to strike down, change, alter voting procedures, election procedures, to push as much of the voting that they can passed the election.
Diaz counters, that’s beside the point. For his clients, obstacles to voting are unfair, especially when the state has no system to keep track of payments made by felons.
DIAZ: You know, in many cases, these records are incomplete or conflicting. In the case of restitution, which has paid directly to the victim, not even the state or the counties have records of those amounts and those payments. So it really is just a labyrinth of paperwork and bureaucracy, and it can be really challenging for anyone to determine how much was ordered in the first place, how much they still owe and how much they’ve paid over time.
It could take up to six years to set up an accurate accounting system, Florida has said, one that separates out costs like interest or service charges that accrue over time and even differ county by county.
For the other side, Bopp doesn’t dispute that the state government system is a mess. He agrees the state is obligated to figure out a mechanism for parsing the sentence, its obligations and whether they’ve been discharged.
BOPP: But that’s not a reason to disregard certainly in cases where it’s known, disregard the obligation to fulfill you know, to pay back their debt to society. But the other point of course is, what’s the right here? I mean, there is no right for a felon to be able to vote. The Supreme Court has held that. It’s been quite normal in the history of our country that convicted felons are not restored their voting rights and the Supreme court has upheld that as constitutional. And so it’s a matter of really legislative grace that when voting rights are restored.
Bopp said the courts are sorting out when changes can be made to voting procedure and how close to an election they can be made. The general rule is not to do it, because of the inherent chaos that transitions create. That general rule sometimes gives way, depending on balancing factors, like how important the right is that’s being violated.
BOPP: So this is really fact intensive. So, there’s been not just a couple of cases, there’s been quite a few cases where this question has been presented to the court. They reacted differently in different contexts because I think it’s really fact intensive.
Some disagreement remains on whether Florida voters actually understood the nuts and bolts of Amendment 4.
The Supreme Court has declined numerous times this year to intervene in voting rights disputes in other states. On Friday, the court did agree to hear two voting cases for the new term, including a challenge to a ban against ballot harvesting. But that’s later, and not before this next election.
Despite being turned down in the Florida felons case, Diaz says his group isn’t giving up. Felons and lawyers are mulling their next steps and that may include taking the full case to the US Supreme Court.
One thing is fairly certain, as much as anything can be these days: Today, October 5th, is the registration deadline to vote in Florida.
One final thing I want to note: several wealthy individuals have stepped in to pay the debts for the felons: John Legend, LeBron James, Michael Jordan, and Michael Bloomberg, to name a few. The Washington Post reports that Bloomberg paid off the obligations of 32,000 felons already.
And that’s this week’s Legal Docket.