Betty Riddle is 62 years old, and she hopes to vote in a presidential election for the first time this year. She was ineligible to vote in previous election years because of felony convictions in the 1970s and 1980s. Riddle became eligible to register to vote last year, but a new state law required people to first pay outstanding court fines and fees, which totaled thousands of dollars for Riddle and many others.
Riddle joined a class action lawsuit challenging Florida's law as a poll tax, and a federal judge in May ruled that it's unconstitutional for the state to block citizens who are "genuinely unable to pay" from voting. On July 1, the 11th U.S. Circuit Court of Appeals overturned a lower court's decision blocking the poll tax for the August primary election while it reviews the judge's ruling.
Two judges on that appeals court are refusing to sit out the case — even though they considered a related issue while serving on the Florida Supreme Court. Last week, Democrats on the U.S. Senate Judiciary Committee wrote to Judges Barbara Lagoa and Robert Luck and suggested that their participation in the case violated judicial ethics rules, which bars judges from hearing cases if their impartiality could "reasonably be questioned."
Another Trump appointee, Judge Andrew Brasher, recused himself after getting a letter from the senators. Brasher explained that he was sitting out the case because he had represented Alabama when it filed a brief supporting Florida's position in the poll tax case.
Earlier this week Lagoa and Luck explained their decision to hear the case, pointing out what they see as fundamental differences between the state court decision and the federal lawsuit. They said the federal lawsuit doesn't ask them "to review the correctness of the Florida Supreme Court's decision." Lagoa and Luck argued the cases weren't part of the same "proceeding," as defined by ethics rules.
The judges served on the Florida Supreme Court for less than a year before being nominated by President Donald Trump and confirmed to lifetime seats on the 11th Circuit, which hears appeals from Alabama, Florida, and Georgia. During that time, they participated in oral arguments about Amendment 4, a 2018 referendum approved by Florida voters that restored voting rights to nearly 1 million people with felony convictions.
DeSantis asked the Florida Supreme Court if the amendment's restoration of voting rights to people who completed "the terms of their sentence, including probation and parole," included people with outstanding fines or fees. During oral arguments, then-Justices Lagoa and Luck asked the parties questions, and Lagoa cited statements from Amendment 4 supporters that "terms of their sentence" included fines and fees.
The Florida Supreme Court ultimately decided that "terms of their sentence" includes fines and fees. DeSantis celebrated the decision with a tweet that referred to voting as "a privilege." Lagoa and Luck, who had just been confirmed as federal judges, didn't sign the court's advisory opinion.
When Florida Republicans passed what opponents call "the poll tax law," referring to unconstitutional voting fees that historically targeted African Americans, they also claimed that Amendment 4 required the payment of outstanding court fines and fees. The law could keep more than 750,000 citizens from getting their voting rights back, and they are disproportionately Black.
Earlier this year, a panel of three 11th Circuit judges affirmed that Florida cannot deny citizens their right to vote just because they cannot afford to pay. The ruling allowed the plaintiffs to register to vote.
"It made me feel a part of, instead of apart," Riddle said in response to the ruling. "I knew that my voice would be heard." But her relief didn't last long. On July 1, the full 11th Circuit agreed to review the panel's decision. It also took the unusual step of allowing the state to enforce the law while it reviewed the trial court's decision.
The 11th Circuit is hearing arguments on Aug. 18 — primary election day in Florida. The U.S. Supreme Court recently refused to intervene.
SCOTUS tosses voter suits
U.S. Supreme Court Justice Clarence Thomas, the Court's only Black justice and its only Southerner, is designated to hear emergency appeals from the 11th Circuit. Thomas referred the voters' appeal seeking to block the Florida poll tax to the entire Court, which declined to act.
The "Court's inaction continues a trend of condoning disfranchisement," Justice Sonia Sotomayor said in dissent. "Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money." Justices Elena Kagan and Ruth Bader Ginsburg joined the dissent.
In a few high-profile cases this year, including one challenging a restrictive Louisiana abortion law, conservative justices crossed the ideological line and voted with the liberal justices. But every chance it got, the Court's conservative majority has come together to rule against expanded voting rights.
Earlier this month, for example, the justices overturned a lower court decision that eased voting rules during the COVID-19 pandemic in Alabama. The Court threw out a similar lawsuit from Texas in June. It has yet to weigh in on lawsuits out of Southern states that are challenging restrictions on voting by mail.
Trump's appointments have shifted the South's federal courts further to the right and made them less diverse. The U.S. Senate recently filled the final appellate court vacancies with nominees who had records of defending voter ID laws and other forms of voter suppression.
Some state courts in the South have acted to protect voting rights this year. But not in Florida, where DeSantis' appointees have come from the ranks of the conservative Federalist Society. A lawyer in the DeSantis administration said last year that adhering to the group's ideology is the "singular test" for the governor's nominees. The Federalist Society also advises President Trump on his nominees. The group does not disclose who its donors are.
The Federalist Society's former leader, Leonard Leo, flew from Washington, D.C., to Florida to interview Luck and Lagoa before DeSantis appointed them. But Leo recently left that job to launch a new group, the Honest Elections Project, which is fighting efforts to allow more access to mail-in voting during the pandemic.