I. Introduction

In the 2018 midterm election, Florida voters passed Amendment 4.[1] This amendment automatically reenfranchised people with felony convictions[2] “upon completion of all terms of sentence.”[3] As a result, over one million people stood to have their right to vote restored.[4]

Unfortunately, the promise of Amendment 4 was short-lived.[5] In June of 2019, Florida passed Senate Bill 7066.[6] Senate Bill 7066 implemented Amendment 4 and interpreted “all terms of sentence” to include payment of all legal financial obligations (LFOs).[7] In doing so, Florida effectively conditioned reenfranchisement upon payment of LFOs. As a result, countless people discovered that they were no longer eligible to vote due to outstanding LFOs.[8] Given the high rate of indigency among criminal defendants in Florida, Senate Bill 7066 nullified the effect of Amendment 4.[9]

Amendment 4 began a legal dispute about the constitutionality of the LFO requirement and whether Amendment 4 impermissibly discriminated against individuals on the basis of wealth.[10] In February of 2020, in Jones v. Governor of Florida, a panel of the Eleventh Circuit upheld a preliminary injunction enjoining Amendment 4’s LFO requirement.[11] This decision created a circuit split with the Sixth Circuit’s 2010 decision in Johnson v. Bredesen, upholding a similar LFO requirement.[12] This circuit split lasted less than a year because in September of 2020, the Eleventh Circuit revisited Amendment 4.[13] This time, the Eleventh Circuit held that the LFO requirement was constitutional.[14] As a result, over half a million Florida citizens are likely to remain disenfranchised because they are unable to pay their LFOs.[15]

In light of this brief circuit split, what is the appropriate standard of review? Although there is a substantial amount of scholarship on felony disenfranchisement, Amendment 4 raises a novel question about how to analyze the constitutionality of felony reenfranchisement. This Comment proposes using Obergefell v. Hodges as a framework for understanding felony reenfranchisement schemes that are conditioned upon payment of legal fees as both an Equal Protection and Due Process violation. This Comment suggests that Obergefell provides a pragmatic and holistic approach to assessing the harms inflicted by pay-to-vote systems like Amendment 4. In Part II, this Comment provides a brief historical background of felony disenfranchisement in the United States. Part III examines the two circuit court decisions that have addressed felony reenfranchisement schemes. Part IV considers Obergefell v. Hodges as a possible framework for future application, the legal scholarship in response to Obergefell, and Obergefell’s use of precedent. Finally, Part V discusses how Obergefell provides a powerful lens for examining wealth-based discrimination in felony reenfranchisement schemes.

II. Historical Felony Disenfranchisement Trends

Laws disenfranchising people convicted of crimes predate the Constitution.[16] These laws were brought to the United States by English colonists and are rooted in the ancient Greek and Roman idea of “civil death.”[17] This is the idea that those who “committed crimes and broke the social contract of a political body” should be stripped of their “basic civil rights, including the right to vote.”[18]

Despite this long history, it was the Civil War that shaped and expanded felony disenfranchisement in the United States.[19] The emancipation of four million formerly enslaved people acted as the catalyst for the development of new systems of control aimed at policing the freedom of Black citizens and maintaining a system of White supremacist labor exploitation.[20] Across the postwar South, several states implemented the Black Codes and vagrancy laws.[21] These laws attempted to criminalize Black citizens, funnel them into the criminal justice system, and hire them out to exploit their labor through the convict lease system or chain gangs when Black citizens could not pay the fines imposed by these convictions.[22] Reconstruction saw a dramatic influx of criminal convictions for Black citizens and the codification of felony disenfranchisement laws across the South.[23]

In 1869, twenty-seven of the thirty-seven states in the Union had felony disenfranchisement laws.[24] By 1880, after Southern Democrats regained power in the South, thirty-three of the thirty-eight states in the Union had codified felony disenfranchisement.[25] And by 1910, seven more Southern states had followed suit.[26]

This history shows that felony disenfranchisement has been a state issue, and in 1974, the Supreme Court’s decision in Richardson v. Ramirez meant that felony disenfranchisement would remain a state issue.[27] In Richardson, the Court interpreted Section Two of the Fourteenth Amendment to mean that states could permanently disenfranchise people convicted of felonies.[28]

Nonetheless, the majority of states have made efforts to provide paths to reenfranchisement.[29] These states have taken different approaches to restoring the right to vote for people with felony convictions.[30] According to the National Conference of State Legislatures, twenty-one states automatically reenfranchise people with felony convictions once they are released from prison.[31] Sixteen states automatically reenfranchise people with felony convictions after completing parole, probation, or both.[32] Eleven states either permanently disenfranchise people with certain felony convictions, require these individuals to “face an additional waiting period after completion of sentence (including parole and probation)[,] or require additional action before voting rights can be restored.”[33] With the passage of Amendment 4, Florida’s voters voiced a desire to join the majority of states moving away from permanent disfranchisement.[34] However, when Florida’s legislature stepped in and imposed the LFO requirement, Florida once again joined the minority of states that make reenfranchisement much more difficult to attain.[35]

III. The Brief Circuit Split

Two circuit courts have addressed the constitutionality of felony reenfranchisement conditioned on the payment of LFOs, also known as pay-to-vote schemes.[36] Although both the Sixth Circuit and the Eleventh Circuit ultimately upheld pay-to-vote schemes, there was a brief circuit split.[37] While the circuit split no longer exists, it is worth noting that judges in each circuit court took different approaches in assessing the felony reenfranchisement scheme at issue. This Part addresses these different approaches, detailing their underlying disagreement about whether people with felony convictions have a right to vote. More importantly, this Part highlights the need for a unified approach in addressing felony reenfranchisement.

A. The Sixth Circuit

Under Tennessee Code § 40-29-202(a), people with felony convictions cannot vote.[38] To be eligible for reenfranchisement, a person must pay “all restitution to the victim or victims of the offense” and be “current in all child support obligations.”[39] In 2008, plaintiffs filed a suit claiming that the statute was an unconstitutional violation of the Fourteenth Amendment’s Equal Protection Clause.[40] Plaintiffs argued that the statute discriminated on the basis of wealth by impermissibly conditioning the right to vote on the ability to pay restitution and child support.[41]

In Johnson v. Bredesen, the Sixth Circuit rejected the plaintiffs’ claims and upheld the statute.[42] The Sixth Circuit held that people with felony convictions do not have a right to vote.[43] Notably, both the majority and dissent agreed on this point—pay-to-vote schemes should be reviewed under rational basis.[44]

1. The Majority Deferred to the State.

Equal Protection claims typically invoke strict scrutiny, an exacting standard of review that requires government policy to be “narrowly tailored” to achieve a “compelling governmental interest.”[45] Nonetheless, the Sixth Circuit affirmed the lower court’s decision to employ rational basis—a highly deferential standard of review.[46] Rational basis merely requires government actors to proffer a legitimate government interest that is “rationally related” to the government policy.[47] By applying rational basis to felony reenfranchisement, the court effectively deferred to the state.

The court concluded that rational basis rather than strict scrutiny was the appropriate standard of review for two reasons. First, the statute did not burden the fundamental right to vote.[48] Though pay-to-vote schemes certainly affect voting, burdening the right to vote for people with felony convictions was a different matter. Relying on Richardson, the court reasoned that people with felony convictions “lack[ed] any fundamental interest to assert” because states may disenfranchise people convicted of felonies.[49] Second, the court held that wealth-based classifications do not constitute a suspect class.[50] And because the statute did not draw distinctions on a recognized suspect class, the statute did not merit a more searching standard of review.[51]

Applying rational basis, the Sixth Circuit held that the State’s interest in “promoting payment of child support, requiring criminals to fulfill their sentences, and encouraging compliance with court orders” satisfied this deferential standard of review.[52]

2. The Dissent Searched for a Legitimate Interest to Justify Disparate Treatment.

Like the majority, the dissent held that rational basis was appropriate for the same reasons: the statute “neither burden[ed] a fundamental right nor discriminat[ed] against a suspect class.”[53] But unlike the majority, the dissent argued that the State did not satisfy rational basis because the statute was not rationally related to the State’s interest in encouraging “the payment of restitution[] and compliance with court orders.”[54]

The dissent argued that since the statute applied to both people who were able and unable to make these payments, the State’s interest could not be rationally related to the latter.[55] In other words, the statute could not rationally encourage payments from a person unable to make payments.[56] As a result, the state no longer disenfranchised its citizens based on a felony conviction but on their wealth (or lack of wealth)—making wealth a condition for reenfranchisement.[57] And because “wealth as a measure of a voter’s qualification is nothing more than a ‘capricious or irrelevant factor’ that cannot withstand constitutional scrutiny,” the dissent held that the statute could not be rationally related to the State’s interest.[58] Without a legitimate state interest, the statute’s disparate treatment should not have survived rational basis.

B. The Eleventh Circuit Panel

As discussed above, in November of 2018, Florida voters passed Amendment 4, voting to amend their state constitution to restore voting rights to people with felony convictions.[59] Under Amendment 4, people with felony convictions could be automatically reenfranchised “upon completion of all terms of sentence.”[60] However, when the Florida legislature implemented Amendment 4 with Senate Bill 7066, the legislature interpreted “all terms of sentence” to include payment of all LFOs.[61] The district court applied strict scrutiny and issued a preliminary injunction enjoining Amendment 4’s LFO requirement.[62]

Unlike the Sixth Circuit, the Eleventh Circuit panel in Jones v. Governor of Florida did not apply rational basis in reviewing Florida’s reenfranchisement scheme.[63] Instead, the Eleventh Circuit panel found precedent supporting its decision to apply heightened scrutiny.[64]

1. The Panel Applied Heightened Scrutiny.

The Eleventh Circuit panel affirmed the district court’s preliminary injunction but held that heightened scrutiny was the appropriate standard of review, not strict scrutiny.[65] This court recognized that the issues at stake called for a “more searching review,” acknowledging the challenge of determining the correct standard of review because the facts escaped “traditional categories.”[66]

The court did not challenge the fact that people with felony convictions may be permanently disenfranchised or that wealth does not constitute a suspect class.[67] Instead, the court found a narrow exception in Supreme Court precedent that justified heightened scrutiny in two circumstances.[68] The court explained:

In M.L.B. v. S.L.J., the Supreme Court instructed us that wealth classifications are subject to heightened scrutiny in two circumstances—where they are used to restrict access to the franchise and in the administration of criminal justice—both of which are plainly implicated by Amendment 4 and SB 7066.[69]

First, relying on M.L.B.'s first exception, the court explained that Amendment 4 administers wealth-based discrimination in relation to voting.[70] Not only is voting a fundamental right irrespective of its application to people with felony convictions but reenfranchisement is also beyond the scope of Richardson.[71] Richardson, the court argued, only applies to the state’s ability to disenfranchise people with felony convictions.[72] So because “the abridgment of a felon’s right to vote is still subject to constitutional limitations,” wealth-based distinctions are impermissible.[73]

The court then relied on M.L.B.'s second exception and illustrated how Amendment 4 creates a wealth classification in “the administration of criminal justice,” further justifying heightened scrutiny.[74] The court reasoned that disenfranchisement functions as punishment because it stems directly from a criminal conviction.[75] Not only is disenfranchisement a form of punishment, disenfranchisement functions as “a continuing form of punishment” that punishes individuals “at each and every election.”[76] For people who are unable to pay their LFOs, this punishment promises to be permanent despite being eligible for reenfranchisement.[77] The court held that regardless of the State’s ability to disenfranchise people with felony convictions, once the State provides a path for reenfranchisement, the State cannot make distinctions on the basis of wealth.[78]

C. The Eleventh Circuit En Banc

In holding that heightened scrutiny was the appropriate standard of review, the panel for the Eleventh Circuit created a circuit split with the Sixth Circuit. This court affirmed the district court’s preliminary injunction enjoining Amendment 4, and, subsequently, the district court issued a permanent injunction.[79] The District Court found that Amendment 4’s LFO requirement violated the Equal Protection Clause, Due Process Clause, and Twenty-Fourth Amendment.[80] This victory was short-lived. On appeal, the en banc court of the Eleventh Circuit revisited Amendment 4 and reversed itself—ending the brief circuit split.[81]

1. The Majority Rejected Heightened Scrutiny.

On en banc rehearing, the Eleventh Circuit held that the panel should not have applied heightened scrutiny.[82] Like the Sixth Circuit, the court held that rational basis was the appropriate standard of review.[83] Notably, the court’s inquiry was substantially similar to the Sixth Circuit’s analysis. The court concluded that the plaintiffs’ Equal Protection claim did not merit a more searching review because the LFO requirement did not burden a fundamental right or create a suspect classification.[84] First, the court held that people with felony convictions—unlike other citizens—do not have a fundamental right to vote.[85] So “[s]tates may restrict voting by felons in ways that would be impermissible for other citizens.”[86] As long as states did not invoke suspect classifications in a way that would “independently warrant[] heightened scrutiny,” states were within their right to impose added barriers to voting when applied to people with felony convictions.[87] Second, the court held that the LFO requirement did not create a suspect classification because wealth is not a protected class.[88] Therefore, a heightened standard of review was inappropriate.

Applying rational basis, the court held that the State’s interest in producing a responsible electorate was rationally related to Amendment 4’s LFO requirement.[89] Although the court acknowledged that the LFO requirement may inevitably produce an under- or overinclusive electorate, the court found that the state “could rationally conclude” that people with felony convictions who paid their LFOs would be “more likely to responsibly exercise the franchise than those who have not.”[90] Accordingly, Florida satisfied the “low bar” that rational basis review sets forth.[91]

2. The Dissent Recognized the Fundamental Right to Vote.

The dissent argued that heightened scrutiny was the appropriate standard of review.[92] The dissent agreed with the panel that M.L.B. provides an exception when wealth-based classifications apply to voting or function as punishment.[93] First and most importantly, the dissent acknowledged that people with felony convictions also have a constitutionally protected fundamental right to vote once states provide a path to reenfranchisement.[94] The dissent reasoned that reenfranchisement is outside the scope of Richardson.[95] Though Richardson allows states to permanently disenfranchise people with felony convictions, the “state’s ability to deprive someone of a profoundly important interest does not change the nature of the right.”[96] Unlike other approaches, the dissent argued that voting is fundamental regardless of who is exercising the right.[97] Additionally, Amendment 4 provided a right to reenfranchisement that states must implement in a manner that is constitutionally permissible.[98] Second, the dissent noted that Amendment 4’s LFO requirement constituted punishment because it “result[ed] in an absolute deprivation of the right to vote for felons in any elections that take place while they are indigent.”[99]

Even if heightened scrutiny did not apply, the dissent argued that Amendment 4 would still not pass constitutional muster because Florida could not satisfy rational basis.[100] It is irrational to only reenfranchise those with sufficient means to pay their LFOs in order to further the State’s interest in ensuring a responsible exercise of the right to vote.[101] The dissent made clear that “wealth has no bearing” on people’s ability to exercise their right to vote.[102]

IV. Obergefell: The Synthesis of Two Clauses

The different approaches put forth by the Sixth and Eleventh Circuit Courts demonstrate that there are multiple ways to address the constitutionality of pay-to-vote schemes, and with each passing election, there is a greater need for a unified approach. Obergefell’s “synthesis” of the Equal Protection and Due Process Clauses[103] provides a framework that can be applied in this context.[104] Particularly, Obergefell is a useful way to consider wealth-based discrimination in the context of felony reenfranchisement.

In 2015, in Obergefell v. Hodges, the Supreme Court held that laws banning same-sex marriage were unconstitutional.[105] Notably, the Court avoided classifying the issue as strictly a Due Process or an Equal Protection violation.[106] Instead, the Court expressly used both the Equal Protection and the Due Process Clauses to protect same-sex couples from discrimination and to protect their fundamental right to marry.[107] Writing for the majority, Justice Kennedy explained that:

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.[108]

While it was not the first time these two Clauses have coexisted in Supreme Court caselaw,[109] the novelty of Obergefell rests in the way the Court harmonized these Clauses to advance justice.[110] Arguably, Obergefell put forth a new doctrine that considers the ways in which these two Clauses intersect.[111] This would allow courts the flexibility to consider more holistically the rights and liberties at stake in order to continue moving toward justice.[112] Obergefell recognizes that the meaning of freedom is not fixed.[113] And with that acknowledgement, Obergefell provides a path to move forward.[114] A closer look at Obergefell’s analysis of Supreme Court precedent and the legal scholarship in response to Obergefell demonstrates that Obergefell’s framework is a powerful tool to redress injustices that implicate both the Due Process and Equal Protection Clauses when each individual clause may fall short.[115]

A. Obergefell Is Consistent with Supreme Court Precedent

A prominent critique among the Obergefell dissenters is that Obergefell is an application of policy as opposed to law.[116] The dissenters argued that Justice Kennedy’s synthesis of the Equal Protection and Due Process Clauses represents an impermissible departure from the Constitution and consequently interferes with an issue belonging to the political process.[117] Likewise, any application of Obergefell would likely raise the same critique. However, Justice Kennedy’s use of precedent supports his synthesis of the Equal Protection and Due Process Clauses.[118] So although Obergefell’s approach is novel, it is still grounded within Supreme Court precedent.[119] Any application of Obergefell’s framework is bolstered not just by the soundness of Obergefell itself but also the Supreme Court caselaw that it rests upon. Therefore, this Comment suggests that Obergefell should be extended and applied outside the confines of its facts.[120]

By looking at precedent, Justice Kennedy shows that Obergefell is consistent with the principles of the Equal Protection and Due Process Clauses.[121] Beginning with Loving v. Virginia, in which the Court invalidated laws banning interracial marriage on Equal Protection grounds,[122] Justice Kennedy wrote that the Court nonetheless implicated both Equal Protection and Due Process.[123] Justice Kennedy explained that the Court looked beyond racial classifications and acknowledged the fundamental right of marriage as well as the ban’s effect on liberty.[124]

Similarly, Justice Kennedy explained that both Clauses were again invoked in Zablocki v. Redhail, in which the Court held that a statute preventing “fathers who were behind on child-support payments from marrying” was also unconstitutional.[125] The statute in Zablocki constituted an Equal Protection violation, but the Court’s holding also relied on an understanding of marriage as a fundamental right.[126]

Next, in Lawrence v. Texas, the Court invalidated laws criminalizing intimacy between same-sex couples as a Due Process violation.[127] However, Justice Kennedy noted that the Court’s holding also invoked equality because it sought to address the stigma that resulted from these laws.[128] Finally, in Obergefell, Justice Kennedy explicitly put forth the intersection of these Clauses with regard to same-sex marriage, explaining that “[i]t is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.”[129] Justice Kennedy’s opinion held that bans on same-sex marriages inflict “a grave and continuing harm” and “disrespect and subordinate” same-sex couples.[130] Ultimately, Justice Kennedy’s analysis proves that Obergefell is merely an application of precedent.

Statutes that implicate both Clauses merit a closer look at how individuals are affected in terms of both their liberty and on the basis of equality.[131] Justice Kennedy’s analysis not only shows that the Court’s inquiry must be flexible but that historically the Court’s inquiry has been flexible.[132] By broadening the inquiry, Obergefell opens the doors to how courts may analyze these issues going forward.[133]

In Obergefell, Justice Kennedy expressly pointed out that courts should address these inquiries going forward.[134] While our democratic process provides an avenue to redress harms, courts are also a proper place to redress harms.[135] Obergefell highlights that our nation is a constitutional democracy.[136] The political process is one avenue, but it is not the only one.[137]

The legal scholarship in response to Obergefell demonstrates the potential for Obergefell to stand as a doctrine of its own—one that merits its application outside the context of same-sex marriage. The legal scholarship also highlights the limits of each Clause individually, and thus the power of integrating both the Equal Protection and Due Process Clauses as employed in Obergefell.[138]

Professor Laurence Tribe describes the intersection of the Due Process and Equal Protection Clauses Justice Kennedy puts forth in Obergefell as the “doctrine of equal dignity.”[139] To Tribe, the doctrine of equal dignity represents a new framework for assessing fundamental rights.[140] The power of this doctrine lies in being able to invoke dignity when discussing fundamental rights.[141] In actuality, Tribe points out that invoking dignity would be in line with the Constitution.[142] Tribe argues that Obergefell, in bringing together both the Equal Protection and Due Process Clauses, fulfills the true intent of the Fourteenth Amendment—“to atone for our nation’s own original sin and extend our Constitution’s promise to all citizens.”[143] The doctrine of equal dignity broadens the Court’s inquiry and provides an opportunity to truly assess harm.[144] Thus, Tribe demonstrates that Obergefell is an attempt to rectify injustice and should be used for that purpose.[145]

Professor Kenji Yoshino argues that by bringing together the principles of liberty and equality in the Due Process and Equal Protection Clauses, Obergefell highlights “antisubordination concerns,” allowing for greater protection of marginalized groups.[146] Yoshino first explains that a traditional Due Process analysis is a limited inquiry into rights that are “deeply rooted in this Nation’s history and tradition.”[147] Thus, this analysis falls short in its ability to protect rights outside of those parameters.[148] However, in Obergefell, the synthesis of Due Process and Equal Protection does not adhere to historical limitations.[149] The historical analysis is merely an element and not a boundary.[150] Yoshino argues that this is part of Obergefell’s strength.[151] Yoshino then shows that the Equal Protection Clause alone could not protect true equality because state actors can avoid Equal Protection violations by withholding a benefit from everyone in order to not provide it for a few.[152] For example, Yoshino notes that state actors in Kentucky refused to issue anyone a marriage license in order to avoid issuing same-sex couples a marriage license.[153] Thus, Yoshino writes, “What Obergefell does is to drive this idea further to the surface—asserting that in the common law adjudication of new liberties, the effect on those subordinated groups should matter.”[154] Ultimately, the power and potential of Obergefell is that it allows judicial analyses to take into account the harms suffered by marginalized groups.[155]

These scholars demonstrate and advocate for the use of the Equal Protection and Due Process Clauses as one principle.[156] Additionally, several other scholars have already noted that Obergefell provides an instructive framework for other contexts or have used Obergefell to suggest new solutions to issues of discrimination.[157] Thus, Obergefell is instructive in analyzing injustice in a contemporary context.

V. Obergefell as a Framework for Assessing Wealth-Based Discrimination in Felony Reenfranchisement

On its face, the facts of Obergefell point to a deferential standard of review. Marriage is a fundamental right, but sexual orientation remains an unprotected class.[158] Yet Obergefell looked beyond these categorical limitations.[159] In synthesizing both the Equal Protection and Due Process Clauses, the Court was able to protect same-sex couples from discrimination.[160] Likewise, pay-to-vote schemes like Amendment 4 also point to a deferential standard of review that both the Sixth and Eleventh Circuit Courts have now applied.[161] Voting is a fundamental right, but socioeconomic status remains an unprotected class.[162] By classifying Amendment 4’s LFO requirement as both a Due Process and Equal Protection violation, Obergefell provides a pragmatic approach that allows courts to address discrimination in a contemporary context and against unprotected classes.

A. The Limitations of the Due Process Clause

As scholars like Kenji Yoshino and Laurence Tribe have pointed out, the Due Process analysis inherently excludes historically marginalized groups.[163] An analysis that depends on history can never protect those historically marginalized.[164]

When considering a fundamental right, how courts define that fundamental right matters.[165] As noted above, a Due Process analysis requires that a right be “deeply rooted” in history.[166] Voting is a fundamental right.[167] But a historical analysis would show that people convicted of crimes historically have been denied the right to vote.[168] And without a right rooted in history, the Due Process Clause will not provide a remedy.[169]

Yet a historical analysis of felony disenfranchisement laws shows that these laws were largely motivated by racism in the aftermath of the Civil War.[170] For example, after the Civil War, the 1868 Florida State Constitution permitted felony disenfranchisement despite the fact that doing so would prevent Florida from reentering the Union—suggesting that Florida state actors wanted to disenfranchise Black citizens during Reconstruction and used criminal laws to do so.[171]

A Due Process inquiry might not look further than the fact that historically people with felony convictions in Florida have not had the right to vote even though the reason for this is in all likelihood rooted in racism.[172] But if we define the fundamental right as simply the right to vote, and not the right of a person with a felony conviction to vote, then the result is different.[173] For example, Obergefell demonstrates that marriage was consistently defined as a fundamental right.[174] Justice Kennedy explained that “Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’”[175] Instead the Court “inquired about the right to marry in its comprehensive sense.”[176] This same comprehensive approach should be employed when assessing pay-to-vote schemes. This approach will allow for a more robust protection of fundamental rights.

Additionally, this approach allows courts to address the history of injustice that manifests itself in contemporary laws. Looking exclusively to past rights, it is clear that voting is fundamental, but there has been an undeniable tradition of exclusion.[177] A historical approach shows voting was not extended to Black citizens or women at this country’s founding.[178] A historical perspective is inherently limiting.[179] In Obergefell, Justice Kennedy explained, “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”[180] Alone, the Due Process Clause does not address this issue, but Obergefell confronts it and provides a path forward.

B. The Limitations of the Equal Protection Clause

Like the Due Process Clause, the Equal Protection Clause cannot fully redress the harms imposed by pay-to-vote schemes. The Equal Protection Clause poses an impossibly high bar for persons seeking to invoke its protection.[181] First, the Equal Protection Clause extends protection to only five suspect classes: “race, national origin, alienage, sex, and nonmarital parentage.”[182] Here, Florida’s pay-to-vote scheme subordinates people who cannot afford to pay their LFOs by stripping them of their right to reenfranchisement.[183] An Equal Protection analysis would ignore the harm pay-to-vote schemes inflict because indigency is not a protected class.[184] Yet, the Court in Obergefell recognized that same-sex marriage bans subordinated same-sex couples despite the fact that sexual orientation is not a suspect class.[185] While neither sexual orientation nor socioeconomic status constitute suspect classes, these groups experience discrimination.[186]

The limitations of the Equal Protection Clause are highlighted by the fact that even suspect classes face an uphill battle in establishing an Equal Protection claim.[187] For example, it is insufficient to show disparate impact alone, but animus must also be established to warrant protection.[188] These stringent requirements do not recognize the ways in which animus has changed in a modern context, largely going from overt to covert expression.[189] Without showing animus, the standard of review is so deferential that neutral explanations easily sweep away disparate impacts.[190]

The motivation behind Amendment 4’s LFO requirement is unclear. However, events leading up to the 2020 presidential elections could cast doubt on Florida’s explanation for supporting Amendment 4’s LFO requirement. In an effort to help restore voting rights, Michael Bloomberg helped raise millions of dollars to pay the LFOs of those impacted by Amendment 4.[191] Florida officials responded with antagonism to the millions of dollars coming into the state criminal justice system. Florida state actors requested an investigation from the FBI.[192] Organizations dedicated to helping reenfranchise people with felony convictions received threats from White supremacists.[193] The then-President of the United States even accused Michael Bloomberg of bribing voters.[194] Regardless of whether there is animus behind the LFO requirement, the Equal Protection Clause simply is not amenable to the systematic ways in which animus unveils itself.[195]

Additionally, as Yoshino points out, Equal Protection Clause violations allow state actors to simply ratchet down.[196] Because Richardson held that people with felony convictions may be permanently disenfranchised, states could easily avoid Equal Protection violation claims by not restoring voting rights at all.[197] However, it is significant that Florida state actors did not move to restore voting rights for people with felony convictions; instead, it was the people of Florida who voted to restore voting rights by popular referendum.[198] This means that the constitutionality of Amendment 4 came before the courts only because Florida citizens used their vote to reenfranchise their fellow citizens.[199]

C. Applying Obergefell: The Due Process and Equal Protection Clauses as One

Obergefell’s synthesis of the Due Process and Equal Protection Clauses helps correct the limiting nature of these two Clauses on their own.[200] The synthesis of these two Clauses helps rectify discrimination against nonsuspect classes and protects their fundamental rights.[201] It provides a holistic analysis of the harms individuals face when discrimination implicates both equality and liberty.[202]

Florida’s pay-to-vote scheme “burden[s] the liberty” of people with felony convictions and “abridge[s] central precepts of equality.”[203] Florida’s pay-to-vote scheme affects the liberty of people with felony convictions by creating an arbitrary barrier to voting.[204] It is important to recognize the distinction between disenfranchisement and reenfranchisement.[205] When Amendment 4 passed, people with felony convictions were granted a right to reenfranchisement.[206] Yet the LFO requirement prevents many from accessing this newly returned right to vote.[207]

Lee Hoffman, one of the plaintiffs suing the State of Florida, stated, “I felt like I had a rug ripped from under my feet. Right now, the money I owe two Florida counties in fines and fees feels insurmountable with my current income. I completed my sentence and have stayed out of trouble since 2007.”[208] The LFO requirement both “demeans” and “stigmatizes” people like Hoffman by denying them their right to vote.[209] This stigma is intertwined with the unequal treatment of those who are indigent. The LFO requirement affects equality by withholding the right to vote from people who cannot pay their LFOs while restoring that same right to people who can afford to pay these fees.[210] This reenfranchisement scheme creates a subordinate class of citizens among those who are merely seeking to re-enter society. Obergefell recognizes these harms.[211]

Ultimately, pay-to-vote schemes are fundamentally undemocratic.[212] Voting functions as a check on elected representatives. When states like Florida enforce a pay-to-vote scheme against people with felony convictions, they create a state government in which some people wield more power than others. The people who have served their sentence but cannot afford to pay their fines will go unheard by their representatives. And they will continue to go unheard at every election. As a result, those representatives will be accountable to only a fraction of their constituents; meanwhile, people with felony convictions cannot advocate for themselves without their right to vote.

Obergefell’s framework would allow courts to provide “equal dignity in the eyes of the law” for people with felony convictions.[213] The democratic process in Florida, through Amendment 4, already concluded that people with felony convictions should have their vote restored.[214] In Obergefell, Justice Kennedy notes that “[d]ignitary wounds cannot always be healed with the stroke of a pen.”[215] This is why with each passing election, it becomes more and more necessary that courts apply a unified approach. Obergefell provides the framework for how to address these injustices.

VI. Conclusion

Obergefell’s framework is unequivocal in its recognition of justice. Ultimately, applying Obergefell in the context of felony reenfranchisement allows courts to live up to the principles of Due Process and Equal Protection. Obergefell demonstrates the importance of contemplating both the harms inflicted by the law and the individuals impacted in a meaningful way. Although it will be up to the courts to define a roadmap for how to apply Obergefell in new contexts, Obergefell shows that courts can meaningfully address injustices that do not squarely fit into existing legal frameworks. It is also possible to imagine several other solutions to felony reenfranchisement. Obergefell provides but one vision.

Alexxa Leon

  1. Tim Mak, Over 1 Million Florida Felons Win Right to Vote with Amendment 4, NPR (Nov. 7, 2018, 2:46 AM), https://www.npr.org/2018/11/07/665031366/over-a-million-florida-ex-felons-win-right-to-vote-with-amendment-4 [https://perma.cc/V28T-J6W9].

  2. This Comment will use the term “people with felony convictions” instead of “felon.” See Labels Like ‘Felon’ Are an Unfair Life Sentence, N.Y. Times (May 7, 2016), https://www.nytimes.com/2016/05/08/opinion/sunday/labels-like-felon-are-an-unfair-life-sentence.html [https://perma.cc/8VHM-5JUR]; Language, Prison Stud. Project, https://prisonstudiesproject.org/language/ [https://perma.cc/D5VW-42QJ] (last visited Oct. 7, 2021); see also DeAnna R. Hoskins, Language Matters for Justice Reform, Hill (June 30, 2019, 5:55 PM), https://thehill.com/blogs/congress-blog/politics/451099-language-matters-for-justice-reform [https://perma.cc/DC9N-S5UL]. The term “people with felony convictions” refers to people with one or more felony convictions.

  3. Fla. Const. art. VI, § 4. Amendment 4 does not apply to people “convicted of murder or a felony sexual offense.” Id.

  4. Mak, supra note 1; Daniel A. Gross, What It Felt Like for a Florida Man with a Felony to Regain His Voting Rights, New Yorker (Nov. 7, 2018), https://www.newyorker.com/news/as-told-to/what-it-felt-like-for-a-florida-man-with-a-felony-to-regain-his-voting-rights [https://perma.cc/ZS2W-D2YN]; Alejandro de la Garza, ‘Our Voice Will Count.’ Former Felon Praises Florida Passing Amendment 4, Which Will Restore Voting Rights to 1.4 Million People, Time (Nov. 7, 2018, 12:34 AM), https://time.com/5447051/florida-amendment-4-felon-voting/ [https://perma.cc/BVZ4-BN8B].

  5. Daniel A. Gross, The Fight for Voting Rights in Florida Isn’t Over, New Yorker (May 10, 2019), https://www.newyorker.com/news/news-desk/the-fight-for-voting-rights-in-florida-isnt-over [https://perma.cc/5YJN-992X].

  6. Id.; see Eliza Sweren-Becker, Florida Law Throws Voter Rights Restoration into Chaos, Brennen Ctr. for Just. (July 11, 2019), https://www.brennancenter.org/our-work/analysis-opinion/florida-law-throws-voter-rights-restoration-chaos [https://perma.cc/D9H5-7FSX].

  7. Fla. Stat. § 98.0751; see Patricia Mazzei, Florida Limits Ex-Felon Voting, Prompting a Lawsuit and Cries of 'Poll Tax, N.Y. Times (June 28, 2019), https://www.nytimes.com/2019/06/28/us/florida-felons-voting-rights.html [https://perma.cc/BX53-ZG54].

  8. See Mazzei, supra note 7; Gross, supra note 5.

  9. See Jones v. DeSantis, 462 F. Supp. 3d 1196, 1219 (N.D. Fla. 2020), rev’d and vacated en banc sub nom. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), aff’d sub nom. Jones v. Latimer, No. 20-12304, 2021 WL 4839896 (11th Cir. Oct. 18, 2021) (“The record now shows that the mine-run of felons affected by the pay-to-vote requirement are genuinely unable to pay. I find as a fact that the overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount, and thus, under Florida’s pay-to-vote system, will be barred from voting solely because they lack sufficient funds.” (footnote omitted)).

  10. Id. at 1203–04, 1219. Going forward, this Comment uses “Amendment 4” to include the implementation of Senate Bill 7066’s LFO requirement.

  11. Jones v. Governor of Fla., 950 F.3d 795, 832–33 (11th Cir. 2020).

  12. Johnson v. Bredesen, 624 F.3d 742, 745, 754 (6th Cir. 2010).

  13. Jones, 975 F.3d at 1016, 1028, 1049 (en banc).

  14. Id. at 1049.

  15. Voting Rights Restoration Efforts in Florida, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida [https://perma.cc/EEQ8-JAAH] (Sept. 11, 2020).

  16. Christina Beeler, Felony Disenfranchisement Laws: Paying and Re-Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071, 1076 (2019).

  17. See id.

  18. Id.; see also William Walton Liles, Challenges to Felony Disenfranchisement Laws: Past, Present, and Future, 58 Ala. L. Rev. 615, 617 (2007).

  19. See Angela Behrens et al., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002, 109 Am. J. Socio. 559, 563–65 (2003).

  20. The Civil War and Emancipation, PBS, https://www.pbs.org/wgbh/aia/part4/4p2967.html [https://perma.cc/DRD9-99UQ] (last visited Nov. 1, 2021). See generally Daniel A. Novak, The Wheel of Servitude: Black Forced Labor After Slavery 1–8 (1978); David M. Oshinksky, “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice 11, 20–21 (1996); Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th-Century American South 141, 151, 160, 165, 169, 177, 184 (1984); Eric Foner, A Short History of Reconstruction 55–81 (1990).

  21. Novak, supra note 20, at 1–8; Foner, supra note 20, at 92–100.

  22. Ayers, supra note 20, at 151, 177–78, 183–84; see Foner, supra note 20, at 247–53.

  23. See Ayers, supra note 20, at 151, 169–70; Behrens et al., supra note 19, at 564–66.

  24. Behrens et al., supra note 19, at 565–66.

  25. Id.

  26. Id.; George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 859 (2005) (“Although five Southern states passed felon disenfranchisement laws targeting blacks from 1890 to 1910, more than eighty percent of states nationwide already had felon disenfranchisement laws by that time.” (emphasis omitted)).

  27. See Behrens et al., supra note 19, at 562, 565–66.

  28. Richardson v. Ramirez, 418 U.S. 24, 41–42, 56 (1974). Section Two of the Fourteenth Amendment provides that the right to vote can be “abridged . . . for participation in rebellion, or other crime.” U.S. Const. amend. XIV, § 2. Despite the Court’s interpretation, there has been debate about the intent and scope of Section Two. See Brooks, supra note 26, at 856, 861–63; Liles, supra note 18, at 619–22 (discussing legal challenges in the aftermath of Richardson).

  29. Felon Voting Rights, Nat’l Conf. of State Legislatures (June 28, 2021), https:/ /www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx [https://perma.cc/DKY9-EUZ2]. Despite state efforts to restore voting rights, in 2020, the Sentencing Project estimated that over five million people remained ineligible to vote due to felony disenfranchisement laws. Chris Uggen et al., Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 4 (2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/S9U3-DRGB].

  30. See Felon Voting Rights, supra note 29.

  31. Id. These twenty-one states comprise California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, and Washington. Id.

  32. Id. These sixteen states comprise Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. Id.

  33. Id. These eleven states comprise Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Tennessee, Virginia, and Wyoming. Id.

  34. In 2007, “forty-eight states and the District of Columbia disenfranchise[d] felons who [were] presently incarcerated. Thirty-five states prohibit[ed] felons from voting while on parole, and thirty states bar[red] voting while on probation. Twelve states disenfranchise[d] all or some categories of felons for life, with two of those states disenfranchising felons for life upon a second felony conviction.” Liles, supra note 18, at 617–18 (footnotes omitted); see also Fla. Const. art. VI, § 4; Fla. Stat. § 98.0751.

  35. See Felon Voting Rights, supra note 29. According to the Sentencing Project, in 2020, Florida was the “nation’s disenfranchisement leader in absolute numbers, with over 1.1 million currently banned from voting—often because they cannot afford to pay court‑ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.” Uggen et al., supra note 29, at 4.

  36. Julia Craven, Federal Court Reinstates “Pay-to-Vote” Scheme for Formerly Incarcerated People in Florida, Slate (Sept. 11, 2020, 7:34 PM), https://slate.com/news-and-politics/2020/09/florida-11th-circuit-voting-rights.html [https://perma.cc/QD5E-VJGA]; Johnson v. Bredesen, 624 F.3d 742, 745, 754 (6th Cir. 2010); Jones v. Governor of Fla., 975 F.3d 1016, 1028 (11th Cir. 2020) (en banc).

  37. See infra Sections III.A–B.

  38. See Tenn. Code Ann. § 40-29-202(a).

  39. §§ 40-29-202(b)(1), (c). After Johnson v. Bredesen, the statute was modified. § 40-29-202(b)(2); see Johnson, 624 F.3d at 742. Since 2010, the statute allows a finding of indigency. § 40-29-202(b)(2).

  40. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 1048 (M.D. Tenn. 2008), aff’d, 624 F.3d 742 (6th Cir. 2010).

  41. Johnson, 624 F.3d at 744–46. This Comment will only discuss the plaintiffs’ Equal Protection claim.

  42. Id. at 750–51.

  43. Id. at 746.

  44. See infra Sections III.A.1–2.

  45. Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 359–60 (2006).

  46. Johnson, 624 F.3d at 746–47.

  47. Id.

  48. Id. at 746.

  49. Id.

  50. Id.

  51. Id.

  52. Id. at 747.

  53. Id. at 754–55 (Moore, J., dissenting) (“A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution.”).

  54. Id. at 755–57. This Comment addresses the dissent’s holding with respect to only the Equal Protection claim.

  55. Id.

  56. Id. at 757–58.

  57. Id. at 759 (“[T]he Tennessee statute effectively sets affluence as a voting qualification and is plainly irrational.”). The dissent also discussed the importance of alternative enforcement mechanisms in rational basis review including wage garnishment. Id. at 757.

  58. Id. (first citing Harper v. Va. State Bd., 383 U.S. 663, 668 (1966); and then citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 (2008)).

  59. See supra Part I.

  60. Fla. Const. art. VI, § 4. Amendment 4 does not extend to people “convicted of murder or a felony sexual offense.” Id.

  61. Mazzei, supra note 7.

  62. Jones v. DeSantis, 410 F. Supp. 3d 1284, 1300, 1310 (N.D. Fla. 2019), aff’d sub nom. Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).

  63. Jones, 950 F.3d at 807.

  64. Id.

  65. Id. at 805–07. The district court’s discussion regarding strict scrutiny as the appropriate standard of review is outside the scope of this Comment.

  66. Id. at 808, 817.

  67. Id.

  68. Id. at 817–18.

  69. Id. at 808.

  70. Id. at 820.

  71. See id. at 821–23 (“That Harper’s application of heightened scrutiny to wealth discrimination in the context of access to the franchise was based on the importance of the right in general, rather than the possession of the right by particular individuals, is not surprising.”).

  72. Id. at 821–22.

  73. Id. at 822.

  74. Id. at 817–20.

  75. Id. at 819 (citing Johnson v. Governor of Fla., 405 F.3d 1214, 1218 (11th Cir. 2005) (en banc)).

  76. Id. at 819–20 (emphasis omitted) (“The sanction of disenfranchisement cannot be described merely as a one-time revocation of the right to vote; rather, the punishment visits the felon at each and every election. Felons who are unable to pay (and who have no reasoned prospect of being able to pay) will remain barred from voting, repeatedly and indefinitely, while for those who can pay, the punishment will immediately come to an end.”).

  77. Id. at 817, 819–20 (“Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise.”).

  78. Id. at 820.

  79. Jones v. DeSantis, 462 F. Supp. 3d 1196, 1249–50 (N.D. Fla. 2020), rev’d and vacated en banc sub nom. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), aff’d sub nom. Jones v. Latimer, No. 20-12304, 2021 WL 4839896 (11th Cir. Oct. 18, 2021).

  80. See id. at 1234, 1249. This Comment does not address the court’s holding with respect to the Twenty-Fourth Amendment. See Judge Hinkle’s full opinion for further information on claims concerning Poll Tax, Race Discrimination, Gender Discrimination, Excessive Fines, and Severability.

  81. Jones, 975 F.3d at 1028, 1049.

  82. Id. at 1030.

  83. Id.

  84. Id. at 1029.

  85. Id. at 1029–30.

  86. Id. at 1029.

  87. Id. at 1029–30.

  88. Id. at 1030.

  89. Id. at 1034–35. This Comment does not address the court’s holding regarding the Twenty-Fourth Amendment or procedural Due Process claims.

  90. Id. at 1035 (“To be sure, the line Florida drew might be imperfect . . . . But Florida was not required ‘to draw the perfect line nor even to draw a line superior to some other line it might have drawn.’ The Constitution requires only a ‘rational line.’” (quoting Armour v. City of Indianapolis, 556 U.S. 673, 685 (2012))).

  91. Id. at 1033, 1035.

  92. Id. at 1074 (Jordan, J., dissenting). This Comment addresses Judge Jordan’s dissent. Judge Martin’s and Judge Pryor’s dissents are outside the scope of this Comment.

  93. See id. at 1074–75, 1076.

  94. Id. at 1078–80.

  95. Id. at 1078.

  96. Id. (quoting Jones v. Governor of Fla., 950 F.3d 795, 823 (11th Cir. 2020)).

  97. Id. at 1078–80.

  98. Id.

  99. Id. at 1075.

  100. Id. at 1083.

  101. Id. at 1087.

  102. Id.

  103. Katherine Watson terms this idea the “equal-protection-due-process-synthesis.” Katherine Watson, When Substantive Due Process Meets Equal Protection: Reconciling Obergefell and Glucksberg, 21 Lewis & Clark L. Rev. 245, 247 (2017). Professor Laurence Tribe describes this idea as the “Substantive Due Process and Equal Protection Synthesis.” Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” that Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1902 (2004).

  104. Obergefell v. Hodges, 576 U.S. 644, 674–76 (2015).

  105. Id. at 675–76.

  106. Id. at 672, 675.

  107. Id.

  108. Id. at 672 (citations omitted).

  109. See id. (first citing M.L.B. v. S.L.J., 519 U.S. 102, 120–21 (1996); and then citing Bearden v. Georgia, 461 U.S. 660, 665 (1983)). Justice Kennedy also lists the following Supreme Court cases as examples where the Due Process Clause and Equal Protection Clause come together: Eisenstadt v. Baird, 405 U.S. 438 (1972) and Skinner v. Oklahoma, 316 U.S. 535, 538–43 (1942). Obergefell, 576 U.S. at 674.

  110. See infra Section IV.B.

  111. Obergefell, 576 U.S. at 664 (“History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.” (citation omitted)); see supra note 103; infra Section IV.B.

  112. Obergefell, 576 U.S. at 664.

  113. Id. at 664.

  114. Id. at 673–74.

  115. See infra Section IV.A–B.

  116. Obergefell, 576 U.S. at 686 (Roberts, C.J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not.”); id. at 713–14 (Scalia, J., dissenting) (“The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”); id. at 722 (Thomas, J., dissenting) (“By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.”); id. at 742 (Alito, J., dissenting) (“If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”).

  117. Id. at 686–88 (Roberts, C.J., dissenting); id. at 706–07, 710, 714–15 (Scalia, J., dissenting); id. at 720, 732–33 (Thomas, J., dissenting); id. at 736, 741–42 (Alito, J., dissenting).

  118. See id. at 671–74 (majority opinion).

  119. Id.

  120. See id. at 673–75.

  121. Id. at 672–74.

  122. Loving v. Virginia, 388 U.S. 1, 12 (1967); see Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 Harv. L. Rev. 147, 172 (2015). Yoshino offers his interpretation of Loving by writing, “Loving generally treated the liberty and equality claims as parallel rather than intertwined claims. In contrast, Obergefell explicitly viewed the two claims to be ‘interlocking,’ such that ‘[e]ach concept—liberty and equal protection—leads to a stronger understanding of the other.’” Id. (alteration in original) (footnote omitted) (quoting Obergefell, 576 U.S. at 673).

  123. Obergefell, 576 U.S. at 672–73.

  124. Id. (citing Loving, 388 U.S. at 12) (“To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”).

  125. Id. at 673 (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).

  126. Id.

  127. Lawrence v. Texas, 539 U.S. 558, 562, 578–79 (2003).

  128. Obergefell, 576 U.S. at 674–75 (citing Lawrence, 539 U.S. at 575, 578).

  129. Id. at 675.

  130. Id.

  131. See id. at 672–75.

  132. See id.

  133. See id. at 672–73, 676–77.

  134. Id. at 677.

  135. Id. at 676–77 (“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. . . . The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”).

  136. Id.

  137. See id.

  138. See generally Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16, 19–20 (2015) (introducing the notion of “equal dignity” as the animating principle “around which Justice Kennedy wound the double helix of Equal Protection and Due Process” to provide a “rubric under which fundamental rights should be evaluated going forward”); Yoshino, supra note 122, at 171–74, 179.

  139. Tribe, supra note 138, at 20.

  140. Id.

  141. Id. at 20–22.

  142. Id. at 21.

  143. Id. (“That Amendment’s full potential was abridged by the Supreme Court in the infamous Slaughter-House Cases, where the Supreme Court invoked a misguided form of federalism to neuter the Amendment’s promise that no state could ‘abridge the privileges or immunities of citizens of the United States.’ But Justice Kennedy unified the two other operative clauses of the Amendment, Equal Protection and Due Process, in the name of ‘dignity,’ to generate a concept of great analytic strength and political power. This combination does the work that the Privileges or Immunities Clause was originally designed to do.” (footnotes omitted) (quoting U.S. Const. amend. XIV, § 1, cl. 2)).

  144. Id. at 24–26 (“To leave newly recognized constitutional wrongs that undermine the equal dignity of individuals uncorrected in the name of caution beyond the point where those wrongs have at last become clear to a majority of the Court, Justice Kennedy says, causes unjustified ‘pain and humiliation.’” (quoting Obergefell v. Hodges, 576 U.S. 644, 678 (2015))).

  145. Id. at 30. Tribe specifically contemplates the possibility of using Obergefell to protect the LGBT community in employment or housing. Id.

  146. Yoshino, supra note 122, at 171–74, 179.

  147. Id. at 151 (citing Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). Yoshino explains each element of the Glucksberg test; however, this Comment addresses only the role of tradition. See id. at 151–62.

  148. See id. at 151–53.

  149. Id. at 162–63.

  150. Id. at 164. Yoshino argues that “tradition remains important” but “plays a much less rigid role.” Id. at 164.

  151. See id. at 179 (“Discerning new liberties has always been, and will always be, more an art than a science. After Obergefell, it is simply much more openly an art. Obergefell retired many of the restrictions on due process analysis, reinvigorating the analysis of Justice Harlan’s dissent in Poe. Yet Obergefell also underscored and amplified the role antisubordination concerns have played in due process analysis. This increased emphasis could serve to close as well as to open new channels of liberty. For this reason, this new birth of freedom is also a new birth of equality.”).

  152. Id. at 173–74.

  153. Id. at 173 & n.211.

  154. Id. at 174–75.

  155. Id. at 175 n.218.

  156. See supra Section IV.B.

  157. For example, Kyle P. Nodes argues that Obergefell can apply in the context of felony convictions and jury exclusion. Kyle P. Nodes, Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims, 68 Duke L.J. Online 149, 176 (2019); see also Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 62 & n.23 (2019); Brandon L. Garrett, Wealth, Equal Protection, and Due Process, 61 Wm. & Mary L. Rev. 397, 440 (2019).

  158. Obergefell v. Hodges, 576 U.S. 644, 664 (2015); see Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 756–57 (2011). But see Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1743 (2020) (finding that discrimination against a person on the basis of sexual orientation is a form of discrimination on the basis of sex, a protected class under Title VII).

  159. Obergefell, 576 U.S. at 663–76.

  160. Id. at 672–76.

  161. See supra Part III.

  162. Angela Behrens, Voting—Not Quite a Fundamental Right? A Look at Legal and Legislative Challenges to Felon Disenfranchisement Laws, 89 Minn. L. Rev. 231, 232 (2004); Yoshino, supra note 158, at 756.

  163. See Yoshino, supra note 122, at 152–53; Tribe, supra note 138, at 19; Watson, supra note 103, at 270–71.

  164. Watson, supra note 103, at 270–71.

  165. See Obergefell, 576 U.S. at 671.

  166. See supra note 147 and accompanying text; Watson, supra note 103, at 270–71.

  167. Behrens, supra note 162, at 232; Jones v. Governor of Fla., 975 F.3d 1016, 1078 (11th Cir. 2020) (en banc).

  168. See supra Part II; Beeler, supra note 16, at 1075–83; Brooks, supra note 26, at 853–54.

  169. See Watson, supra note 103, at 270–71.

  170. See supra Part II; Brooks, supra note 26, at 854–59.

  171. Behrens et al., supra note 19, at 565 tbl. 2. See generally Joe M. Richardson, Florida Black Codes, 47 Fla. Hist. Q. 365 (1969); Joe M. Richardson, The Negro in the Reconstruction of Florida, 1865-1877 134–35 (1965).

  172. See Watson, supra note 103, at 270–71; Richardson, supra note 171, at 134.

  173. See Obergefell v. Hodges, 576 U.S. 644, 671 (2015).

  174. See supra Section IV.A.

  175. Obergefell, 576 U.S. at 671.

  176. Id.

  177. See generally Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000).

    Until the 1960s most African Americans could not vote in the South. Women were barred from voting in a majority of jurisdictions until 1920. For many years, Asian immigrants were disfranchised because they could not become citizens, and Native Americans lacked the right to vote far more often than they possessed it.

    Id. at xx.

  178. Id.

  179. See Yoshino, supra note 122, at 151; Watson, supra note 103, at 270–73.

  180. Obergefell, 576 U.S. at 671.

  181. See Nodes, supra note 157, at 158–62; Darren Lenard Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1, 16–18 (2017).

  182. Yoshino, supra note 158, at 756 (footnotes omitted).

  183. Jones v. Governor of Fla., 950 F.3d 795, 817 (11th Cir. 2020).

  184. See id.

  185. Obergefell, 567 U.S. at 675.

  186. Nathaniel Frank & Kellan Baker, Anti-LGBT Discrimination Has a Huge Human Toll. Research Proves It., Wash. Post (Dec. 19, 2019), https://www.washingtonpost.com/outlook/2019/12/19/anti-lgbt-discrimination-has-huge-human-toll-research-proves-it/ [https:// perma.cc/4AUW-XYJH]; Tim Fitzsimons, Nearly 1 in 5 Hate Crimes Motivated by Anti‑LGBTQ Bias, FBI Finds, NBC News (Nov. 12, 2019, 5:36 PM), https://www.nbcnews.com/feature/nbc-out/nearly-1-5-hate-crimes-motivated-anti-lgbtq-bias-fbi-n1080891 [https:/ /perma.cc/9L3L-RST4]; Danieli Evans Peterman, Socioeconomic Status Discrimination, 104 Va. L. Rev. 1283, 1300–04, 1310–26 (2018) (discussing how pervasive socioeconomic status discrimination is in sectors like education, housing, voting, customer markets, and employment).

  187. See Yoshino, supra note 158, 756–58.

  188. Nodes, supra note 157, at 154, 159–61.

  189. See id. at 161–62. During Reconstruction in Florida, laws criminalizing freedpeople were irrefutably motivated by racism. See Richardson, supra note 171, at 64–66. Richardson uses primary sources to prove: (1) laws were enacted to criminalize freedpeople; (2) fines were explicitly heavy handed and resulted in incarceration; (3) the justice system applied differently to White people; and (4) Florida state actors wanted to disenfranchise Black voters. Id. at 60–61, 64–66, 69–74, 76–84. In 2019, the Sentencing Project reported that in Florida, Black people made up only 15% of the population, yet 47% of people incarcerated in its state prisons. Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 20 app. (2021), https:// www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/ [https://perma.cc/BLL4-83ZR]; see also Justin Worland, America’s Long Overdue Awakening to Systemic Racism, Time (June 11, 2020, 6:41 AM), https://time.com/5851855/systemic-racism-america/ [https://perma.cc/R7YD-NP2W]; Daniel Villarreal, Hate Crimes Under Trump Surged Nearly 20 Percent Says FBI Report, Newsweek (Nov. 16, 2020, 7:57 PM), https://www.newsweek.com/hate-crimes-under-trump-surged-nearly-20-percent-says-fbi-report-1547870 [https://perma.cc/VK78-6BEV] (explaining the rise in hate crimes under the Trump Administration).

  190. See Siegel, supra note 45, at 359–61.

  191. Sam Levine et al., Mike Bloomberg Raises Millions to Help Florida Felons Vote, Guardian (Sept. 22, 2020, 9:07 AM), https://www.theguardian.com/us-news/2020/sep/22/mike-bloomberg-florida-felons-vote-election [https://perma.cc/3JH3-594H].

  192. Matt Dixon & Gary Fineout, Florida AG Calls for Criminal Inquiry into Bloomberg’s $16M Felon Voter Donation, Politico, https://www.politico.com/states/florida/story/2020/09/23/florida-ag-calls-for-criminal-inquiry-into-bloombergs-16m-felon-voter-donation-1317995 [https://perma.cc/H3HB-FXLV] (Sept. 23, 2020, 6:49 PM).

  193. Lawrence Mower & Langston Taylor, Celebrities Spent Millions So Florida Felons Could Vote. Will It Make a Difference?, ProPublica (Nov. 2, 2020, 6:00 AM), https://www.propublica.org/article/bloomberg-lebron-james-fines-fees-florida-felons [https://perma.cc/6NUJ-JW2W].

  194. Jordan Fabian & Josh Wingrove, Trump Calls Bloomberg ‘Criminal’ for Helping Florida Felons Vote, Bloomberg, https://www.bloomberg.com/news/articles/2020-09-24/trump-calls-bloomberg-criminal-for-helping-florida-felons-vote [https://perma.cc/MGY2-JHXT] (Sept. 24, 2020, 1:57 PM).

  195. A modern example of how racism systemically presents itself is the rise of Voter ID laws in the wake of Shelby County. These laws are neutral on their face but have a disparate impact on Black, Indigenous, and People of Color (BIPOC). See The Effects of Shelby County v. Holder, Brennan Ctr. for Just. (Aug. 6, 2018), https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder [https://perma.cc/K753-QNTG] (“The decision in Shelby County opened the floodgates to laws restricting voting throughout the United States. The effects were immediate. Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law. Two other states, Mississippi and Alabama, also began to enforce photo ID laws that had previously been barred because of federal preclearance.”); Jaime Fuller, How Has Voting Changed Since Shelby County v. Holder​?, Wash. Post (July 7, 2014), https://www.washingtonpost.com/news/the-fix/wp/2014/07/07/how-has-voting-changed-since-shelby-county-v-holder/ [https://perma.cc/J38B-BPER].

  196. Yoshino, supra note 122, at 173; see Colgan, supra note 157, at 143 (“Jurisdictions found to be engaging in wealth-based penal disenfranchisement could, however, simply eliminate opportunities for reenfranchisement altogether given that the constitutional claims investigated in this Article are available only because lawmakers have chosen to create a system for reenfranchisement that discriminates between people of means and those without.”).

  197. Colgan, supra note 157, at 143.

  198. Gabby Deutch, Florida Felons Want Their Voting Rights Restored, Atlantic (Sept. 13, 2018), https://www.theatlantic.com/politics/archive/2018/09/florida-felons-want-their-voting-rights-restored/570103/ [https://perma.cc/9UT4-QP6S]. It is notable that Amendment 4 was a ballot initiative.

  199. Mak, supra note 1.

  200. See supra Part IV.

  201. See generally Watson, supra note 103; Yoshino, supra note 122; Tribe, supra note 138.

  202. Obergefell v. Hodges, 576 U.S. 644, 675 (2015).

  203. Id.

  204. See Johnson v. Bredesen, 624 F.3d 742, 759 (6th Cir. 2010).

  205. See Jones v. Governor of Fla., 975 F.3d 1016, 1078 (11th Cir. 2020) (en banc).

  206. Mak, supra note 1.

  207. Jones v. DeSantis, 462 F. Supp. 3d 1196, 1219 (N.D. Fla. 2020), rev’d and vacated en banc sub nom. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), aff’d sub nom. Jones v. Latimer, No. 20-12304, 2021 WL 4839896 (11th Cir. Oct. 18, 2021).

  208. Lee Hoffman, Military Vet on FL Poll Tax: 'I Felt the Rug Ripped from Under My Feet, Campaign Legal Ctr. (July 17, 2019), http://campaignlegal.org/story/military-vet-fl-poll-tax-i-felt-rug-ripped-under-my-feet [https://perma.cc/6WFX-Q3PZ].

  209. Obergefell v. Hodges, 576 U.S. 644, 672 (2015).

  210. Jones v. Governor of Fla., 950 F.3d 795, 817–18 (11th Cir. 2020).

  211. See Obergefell, 576 U.S. at 672.

  212. Beeler, supra note 16, at 1086–88.

  213. Obergefell, 576 U.S. at 681.

  214. Mak, supra note 1.

  215. Obergefell, 576 U.S. at 678.