Judicial Restraint Is a Bargain You Can’t Win

Anthony Sanders · September 22, 2020

Earlier this month the U.S. Court of Appeals for the Eleventh Circuit upheld Florida’s slap-dash system of forcing convicted felons to pay outstanding fines and fees before being allowed to vote. The full court voted 6 to 4 that despite many problems, Florida could continue denying voting rights to tens of thousands of former felons even though Florida citizens in 2018 approved a measure that restored felon voting rights upon completion of their sentences.

The dissenting judges were rightfully indignant about the irrationality of how Florida’s legislature and bureaucracy have placed massive barriers in the way of reenfranchising former felons. Many commentators on “the left” (and even some on “the right”) were similarly dismayed. But, unfortunately, they shouldn’t have been surprised. Supporting the court’s majority were decades of Supreme Court cases where it said facts don’t matter and logic doesn’t either. Many of these past decisions were undoubtably supported by the judges and commentators decrying this latest news from Florida.

The Eleventh Circuit’s decision is a case of chickens coming home to roost. These past Supreme Court cases—issued in a variety of contexts regarding a variety of rights—provided the excuses the majority needed to bless Florida’s behavior. This result should remind everyone, left and right, that when you support extreme “judicial restraint” for some rights but not others that inconsistency can leave you with nothing protected. And it’s too bad because what Florida has done is absurd, embarrassing, and pathetic (but only in a Third World, banana republic kind of way).

You owe money, but how much I’m not going to tell you.

The story starts with the Florida Constitution, which until 2018 barred all people convicted of a felony from voting. But Floridians changed that by adopting language that restored voting rights for most felons “upon completion of all terms of [their] sentence.” “All terms” was then interpreted by the Florida Supreme Court to include the payment of all fines and fees imposed as part of a felony conviction, and the Florida legislature adopted legislation providing for how those fines and fees are to be paid off.

So, former felons can now vote, but only if they’ve paid everything they owe as part of their original sentence. Sounds simple, right? Well, the trial court in the case found that was anything but true.

I’m not going to enumerate everything that Florida has done wrong, but here’s a few highlights. The trial court found that tens of thousands of former felons who otherwise are completely finished with prison, including parole and probation, nevertheless still owe some of their original fines and fees they were sentenced with. And, most of them are indigent, making it pretty hard to pay those fines and fees.

Next, even if someone can pay, computing how much these prospective voters each owe is . . . hard. Most don’t know how much they still must pay, and neither does the state. If a former felon calls the court clerk to ask how much he or she owes, the clerk will likely be unable to provide a straight answer. One official even testified his staff isn’t trained to be able to provide that information. Further, there’s no database recording all of that information, and full answers as to what is owed, what has been paid, and when, may require review of paper records in old, hard-to-locate, files.

On top of all this, former felons often owe fees for all kinds of other things that accrue subsequent to their actual sentences, such as fees to pay for their probation officers or just interest on unpaid fines and fees (which can often grow many times greater than the original amounts). Part-way through the lawsuit—obviously as a litigation strategy and not an actual policy—Florida said that it would allocate all payments made to the original fines and fees. That sounds good, except the trial court found that the state had no system of actually tracking the payments or enforcing this new standard, making the system largely futile.

This mess led to the staggering fact that of the 85,000 or so former felons who have applied to vote and are waiting to see if they owe any past fines and fees, zero (that’s not a typo), have had their voting rights restored. That’s a process that in comparison makes the Department of Motor Vehicles seem as efficient as PayPal. It wouldn’t be until 2026 that the state thought it would have all of its reviews completed (and given the trend so far, that sounds optimistic).

Allowing the government to go insane.

Sounds irrational right? Under any normal person’s definition, this system of “reenfranchisement” would be exactly that. The system makes no sense as a way to reinstate voting rights, and if anything it is counterproductive and a waste of tens of thousands of people’s time. “Irrational” is also generally the standard for when the government’s actions are unconstitutional. So is this system unconstitutional? Unfortunately, the Supreme Court has defined “irrational” to mean something very different from what Americans think it means. It uses this definition through a method of passing the Constitutional buck—which is itself irrational—called the “rational basis test.”

Under some interpretations of the rational basis test, determining whether the government acts “irrationally” is not tied to the actual facts of a case. This approach doesn’t have to worry about whether a policy achieves its goals. It is enough that the government might have thought a fact was true, and that it might have thought that at least some of its goals were going to be (kind of) achieved. Addressing goals piecemeal is fine, even if very few people are helped through the pieces.

Except, sometimes the Supreme Court doesn’t do that. Sometimes it says facts matter under the rational basis test, and that the government can’t just arbitrarily draw lines whenever it suits itself. For example, in one case called Cleburne v. Cleburne Living Center (1985), the court investigated all the factual bases a city council gave for denying a permit for a home for the mentally handicapped and found them all lacking once actual facts were examined, not just facts that the government might have thought were true.

This has created a world of two rational basis tests. One where the government automatically wins and one where unthinking behavior like Florida’s is honestly examined and often declared unconstitutional. It’s hard to determine when one set of cases applies and one does not. Many have pointed out that several rational-basis losses for the government have involved gay rights, but that only explains a few cases. The government has also lost when it comes to denying permits and licenses, charging taxes, and denying benefits. More often, however, it has won when those same things—and often very similar policies—were at issue. One of the starkest examples was just a few years ago when, in an opinion by Justice Stephen Breyer, the Court said it was constitutional for the city of Indianapolis to cancel a special assessment for some taxpayers but not others based on “administrative convenience.” By that rationale basically anything government does could be upheld because it’s always “convenient” for bureaucrats to do what’s easiest for them.

Both liberal and conservative jurists have lauded opinions like that in the Indianapolis case as examples of “judicial restraint.” And lower courts have applied them over and over again to uphold all kinds of unjustifiable government behavior. However, at times lower court judges—again, both liberal and conservative—have used the other set of rational-basis cases to find some laws unconstitutional.

Bargaining away the Constitution

The Eleventh Circuit’s review of Florida’s reenfranchisement system is a perfect example of how the Supreme Court’s judicial abdication—but occasional engagement—allowed the judges to pick sides unconstrained by the Constitution’s actual mandates. The state did not challenge any of the many damning facts that the trial court found. But to the majority that didn’t matter because under the extreme version of the rational basis test facts don’t matter. Finding every excuse it could, and waving its hands in several different directions, the court ruled that it was enough that Florida was kind of trying to pursue the goal of felon reenfranchisement, and that the results were not terribly important anyway. Along the way it cited the most abdicationist precedents, including Justice Breyer’s opinion in the case from Indianapolis. The chief dissenting opinion, meanwhile, relied on the Cleburne case and highlighted the many facts the trial court found. That was right for it to do. But the ample precedent essentially saying “the government always wins” was all the majority needed.

How might the case have come out the other way? If the Supreme Court had repudiated its extreme caselaw upholding “irrational” (by anyone else’s definition) behavior and demanded lower courts look at actual facts to determine if the government’s actions make actual sense. Then, even judges who want to rule for the government will be forced to seriously examine the facts and its justifications (the good Supreme Court cases) instead of making up facts and accepting any excuse (the bad Supreme Court cases).

The extreme version of the rational basis test means that any policy you support will be upheld in court, and most people are loath to endorse something that could potentially endanger their policy preferences. But on the flip side, it also means that policies one believes are inhumane and immoral—as the four dissenting judges in the Eleventh Circuit certainly believed of Florida’s—will also be upheld. Bargaining for Leviathan may get you results you like, but it also still leaves you with Leviathan.

Luckily, our Constitution is not a deal with a dictator. It’s a charter of liberty meant to keep the government honest and limited. The bargain we should all support is real judicial review of all the government’s policies, not just the ones we like. Otherwise, we’ll be left with all of them, however “irrational.”

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.