Votelaw, Edward Still's blog on law and politics

Yesterday the Eleventh Circuit reversed the dismissal of case attacking the Florida constitutional provision disfranchising felons. Johnson v Governor of Florida.

The plaintiffs sued on three theories -- that the provision violated the 14th Amendment's equal protection clause, violated the Voting Rights Act, and constituted a poll tax. The district court had granted summary judgment for the State. The Eleventh Circuit affirmed the poll tax ruling, but reversed on the other two theories. The court held that there were facts in dispute on each of the two claims.

(Disclosure: I was one of the counsel for the plaintiffs when the case was filed, but withdrew when I left the Lawyers' Committee for Civil Rights Under Law.)

On the Equal Protection claim, the court discussed both the 1868 and 1968 Florida Constitutions in light of Hunter v. Underwood and other cases. (I tried Hunter and argued it in the Supreme Court.)

Accordingly, because the Plaintiffs’ showing of racial animus in the 1868 provision creates a genuine issue of material fact as to whether it was adopted with a discriminatory purpose, and because on this record the Defendants have not met their burden of showing that this provision was reenacted in 1968 with an independent, non-discrim inatory purpose, summary judgment was improperly granted. We therefore reverse and remand to the district court for further proceedings on the equal protection claim.

Footnote 19: On remand, the parties shall be given the opportunity to engage in additional discovery to address any other evidence pertaining to the motivations behind the passage of the felon disenfranchisement provision in 1868 and 1968. An assessment of the drafters’ purposes would, among other things, look to the historical context in which the provision was considered, the discussions held at that time, and the changes effectuated. See Arlington Heights, 429 U.S. at 266-67. Eliminating only one part of an odious provision while maintaining other parts that continue to have racially discriminatory effects, for example, might perpetuate rather than eliminate the taint. Cf. Hunter, 471 U.S. at 233 (narrowing changes by the courts to Alabama’s criminal disenfranchisement law did not cure the equal protection violation).

The court also held that the plaintiffs' evidence on the Voting Rights Act claim could convince a fact-finder that "demonstrates intentional racial discrimination behind Florida’s felon disenfranchisement as well as a nexus between disenfranchisement and racial bias in other areas, such as the crim inal justice system, in v iolation of the Voting Rights Act."

Judge Kravitch dissented.