The Modern Poll Tax: Too Many States Condition the Right to Vote on the Payment of Court Debt

The 2022 midterm elections are almost upon us, and the question of voter turnout looms. How many eligible Americans will participate in an election that could change control of both houses of Congress and dramatically impact President Joe Biden’s legacy? If the primary elections are any indication, the answer is precious few. Yet, one group of Americans who desperately wants to vote is legally barred from doing so in many states: people with felony convictions.

In Richardson v. Ramirez, 418 U.S. 24, 54 (1974), the U.S. Supreme Court held that states may permanently disenfranchise people with felony convictions as an “affirmative sanction.” Today, only three states—Virginia, Kentucky, and Mississippi—retain that aggressively punitive stance, allowing voting rights to be restored only if a person successfully petitions the governor for clemency. But in many states, people with felony convictions remain disenfranchised simply because they lack the financial resources to pay court debt—fines, fees, and restitution imposed at the time of their conviction or elsewhere in the criminal legal system.

According to the Collateral Consequences Resource Center, 10 states explicitly deny re-enfranchisement indefinitely because of unpaid court debt for some or all felony convictions, and 15 prohibit re-enfranchisement because of unpaid court debt in certain circumstances. University of California, Los Angeles, Law Professor Beth Colgan argues that the number is even higher: 48 states and the District of Columbia practice some form of wealth-based disenfranchisement against people with felony convictions. By 2016, felony disenfranchisement policies resulted in roughly 6 million people who could not vote. Fully one-quarter (1.6 million people) of those disenfranchised Americans lived in Florida. Because of the profound racial disparities in our criminal system, more than one in five of Florida’s Black voting age population was disenfranchised.

In 2018, it seemed that was about to change. Florida voters overwhelmingly passed Amendment 4, which amended the state constitution to restore voting rights to people who had completed their sentence (murder and certain sex crimes were excluded). The bipartisan victory gave hope to advocates across the country that another remnant of Jim Crow could be dismantled. The story of Amendment 4, however, is a cautionary tale and one that illustrates why court debt is such a formidable hurdle to the restoration of rights to returning citizens and must be eliminated.

Court Debt in America

There are three broad categories of court debt: fines, fees, and restitution. Fines are monetary sanctions imposed as a punishment for violation of a law. Fines date to the earliest days of English common law, and they were originally intended as an alternative to custody. Fines were a recognition that some offenses were simply not serious enough to warrant incarceration. Today, however, fines are often authorized, and, particularly in state courts, mandated in addition to a sentence of incarceration. Florida, for example, imposes a mandatory minimum fine ranging from $25,000 to $250,000 on all convictions for drug trafficking.

Fees, by contrast, are not intended to be a punishment; they are imposed to raise revenue to fund the legal system itself as well as other government services. Fees have a long history in the United States, too; but beginning in the nineteenth century, when the criminal system was professionalized, and continuing until the 1980s, few fees were imposed by state and local governments, and little effort was made to collect those that were. That changed dramatically in the 1980s as the federal government withdrew billions of dollars of funding to state and local criminal systems, and mass incarceration drove up costs. Fast-forward to today, and virtually every state and local government imposes a multiplicity of fees on people, including children in the juvenile justice system, at every stage of the system. Warrant fees, booking fees, jail fees, prosecution fees, public defender fees, fees to establish a payment plan, fees for community service, and fees for diversion programs are just a few examples. In many states, the amount of fees imposed greatly exceeds the fine. In California, the fine for littering is $100, but that $100 fine carries an additional $390 in fees, bringing the total amount owed to $490.

Restitution is money paid to the victim of a crime for economic harm caused by the crime. Every state requires restitution to be imposed, if appropriate, but in the vast majority of felony cases, no victim restitution is ordered. In Florida, at the time Amendment 4 was passed, only a small fraction of cases carried restitution orders.

Collectively, fines and fees impose billions of dollars on people accused, charged, or convicted of traffic, misdemeanor, and felony offenses. Although only 11 states could provide complete data, and more than half produced no data, the Fines and Fees Justice Center documented $26 billion in unpaid court debt in 2021 and estimated the total was at least twice that amount. The amount of unpaid court debt is not surprising. Roughly 80–85 percent of people charged with crimes are eligible for the services of the public defender. They are poor, and they are also overwhelmingly people of color. At a time when the Federal Reserve Board has found that almost 40 percent of Americans could not readily access $400 for an emergency, it is easy to understand why people cannot pay hundreds, and in many cases thousands, of dollars of court debt.

If a person cannot immediately pay their fines and fees, a host of harmful consequences follow. Almost everywhere, the amount owed increases either because of a late fee, interest, or a collection fee added if the debt is sent to a private collection agency. In Florida, for example, state law requires court clerks to send court debt to a private collection agency or law firm 90 days after it is due, and the debt collectors are permitted to add up to 40 percent of the amount owed as a fee. In addition, in more than half the states, a person’s driver’s license will be suspended or their vehicle registration will not be renewed if they owe fines and fees. A person returning to their community after serving a felony sentence will likely have their license suspended, making it even more difficult to find a job that would allow them to pay their court debt and have their voting rights restored.

The Florida Story—Amendment 4

Amendment 4 went into effect on January 8, 2019. But on June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 into law, which prohibits otherwise qualifying Floridians from voting unless they have paid their court debt in full, regardless of their ability to pay. The results were devastating—roughly three-quarters of all people with felony convictions in Florida had outstanding court debt at the time the law went into effect.

A bevy of civil rights organizations sued to block the enforcement of SB 7066. Five cases were consolidated in the Northern District of Florida. After a preliminary injunction blocking the implementation of the law was upheld by the Eleventh Circuit, advocates were again hopeful. And after Judge Robert Hinkle ruled that the law was unconstitutional as applied to people who could not afford to pay their court debt and, further, that SB 7066 amounted to an unconstitutional poll tax, the early promise of Amendment 4 seemed restored. The euphoria was short-lived. In Jones v. DeSantis, 950 F. 3d 795 (2020), the Eleventh Circuit, sitting en banc, vacated the injunction and found the law did not violate the constitution on any of the many grounds alleged. Despite an unprecedented (and continuing) campaign by the Florida Rights Restoration Coalition to raise money to pay otherwise eligible voters’ court debt and recruit pro bono attorneys to advocate for them, over 900,000 Floridians still cannot vote simply because they cannot afford to pay fines and fees.

Reform

The most obvious way to re-enfranchise people who have suffered felony convictions is not to disenfranchise them in the first place. In Maine, Vermont, and the District of Columbia, a felony conviction does not disqualify a person from voting. Other states are getting close. In 2021, California joined 17 other states and now allows people with felony convictions to vote as soon as they are released from custody—regardless of whether they have paid their fines and fees.

Another route to reform is even more compelling: eliminate the source of the problem. Legislatures should require that any fines be proportional to the offense and to the person’s ability to pay, and absent extraordinary circumstances, should not impose fines on a person who is also sentenced to a term of incarceration. Fees should be eliminated and the justice system funded fairly from general revenue. The justice system is supposed to serve all of us; it should be paid for by all of us. If fees were eliminated and fines judiciously imposed, far more people would be eligible to vote, and we would leave billions of dollars in communities that need it most.