Although the increasingly conservative makeup of the Supreme Court is capturing much of the nation’s attention, the judges President Trump has appointed to lower courts are proving just as influential, if not more so, when it comes to the erosion of voting rights.
And it’s happening because of their willingness to break longstanding judicial norms.
Consider what happened after one of the greatest feats of re-enfranchisement was pulled off in Florida in the 2018 election. That year, nearly 65 percent of voters in Florida approved Amendment 4, which called for restoring the right to vote to most people who have served prison sentences. Criminal justice reformers rejoiced. The change applied to 1.4 million formerly incarcerated people in the state.
There was just one problem: As the amendment was written, it stipulated that the right to vote would be restored only to formerly incarcerated people who had completed all terms of their sentences “including parole and probation.” The Florida Legislature later specified that this provision would include the payment of fines and court fees, which can add up to several thousand dollars.
Groups representing the formerly incarcerated in Florida sued, arguing that making people come up with money to exercise their voting rights was akin to instituting a poll tax, which would be unconstitutional.
After several months of legal jockeying, including in the Florida Supreme Court, Judge Robert Hinkle of the United States District Court sided with the former prisoners on May 24. He struck down the rule requiring them to pay fines or fees before registering to vote. But on Sept. 11, the 11th Circuit Court of Appeals overruled him, reinstating the requirement written by the legislature.
The existence of a fee in order to vote is bad enough, but what’s even more concerning is the way the appeals court ruling came about. In their ruling, conservative judges of the 11th Circuit abandoned a longstanding legal practice. They refused to accept the basic facts of the case established in the district court.
It wasn’t a one-off event. Voting rights are being eroded in appellate decisions that overlook or disregard evidence established in lower courts.
“The general principle in American courts is that trial judges control the facts and appellate judges control the law,” says Ned Foley, a professor of constitutional law at Ohio State University. District courts carefully review evidence, hear firsthand from witnesses, and determine the credibility of conflicting evidence. The facts established by these district courts then help the federal courts of appeals focus squarely on resolving contentious legal principles, such as whether certain kinds of evidence can be brought, or whether certain legal tests and doctrines should apply to individuals, groups, and classes.
As a result, voting rights advocates, even when they lost, could count on the district courts to document the facts of their cases and elevate the voices of those whose voting rights had been abridged. They could use the district courts as a means of teasing out ways in which certain voters were shouldering heavier burdens.
But the 11th Circuit decision in Florida’s Amendment 4 case is an example of how the principle of district courts being the arbiter of such facts is being upended before our eyes. And voting rights are particularly vulnerable in this environment.
Tipping the balance
Chief Justice Earl Warren’s tenure on the Supreme Court included cases that transformed the country by reemphasizing the Constitution’s expressions of fairness and equality. The Warren court ruled that schools had to desegregate in Brown v. Board of Education. It ruled that criminal suspects and defendants should receive full due process in decisions like Miranda v. Arizona (which established our Miranda rights). But Warren himself considered his work on ensuring “one person one vote” to be his “most vital decision,” especially in Reynolds v. Sims, in which the court held that the populations of state legislative districts should be as nearly equal as possible. In that and other cases, the Warren court did what the Constitution did not: It secured a right to vote to every person, in the name of fairness.
The concept of fairness, not just a strict, originalist reading of the Constitution, informed decades of precedent. Over time, in that spirit of fairness, many jurists adopted a method called “Anderson-Burdick” that provides a “balancing test,” requiring “courts to weigh [the] burdens that a state imposes on electoral participation against the state’s asserted benefits.” Hinkle used this test when he ruled in favor of the formerly incarcerated Floridians. He found that the burden of having to pay fines and fees was more significant than whatever benefits the state claimed the rule would provide.
Normally, that finding in the district court would amount to a fact base that higher courts would accept while they considered other, broader legal principles.
But not every jurist agrees with anchoring voting rights decisions in fairness. The originalist perspective generally held by Trump appointees does not give primacy to the concept of fairness.
Trump has appointed 53 judges to the federal courts of appeals. Nearly a third of the 179 active circuit court judges are now Trump appointees. The 11th Circuit, which encompasses Florida, now has seven judges appointed by Republicans and five appointed by Democrats. Two of Trump’s appointees to the 11th Circuit, Britt Grant and Andrew Brasher, wrote amicus briefs in Shelby County v. Holder, the 2013 Supreme Court case that stripped the 1965 Voting Rights Act of many of its powers to block discriminatory practices in elections.
When the Amendment 4 case came before the 11th Circuit, the majority essentially disregarded Hinkle’s finding that paying fines and fees excessively burdened prospective voters who are unable to come up with the money. As one of the dissenting judges, Adalberto Jordan, wrote: “So much is profoundly wrong” with the decision that it was “difficult to know where to begin.” He said it would be best to do what the majority of the court did not do, “first turn to the facts, those ‘stubborn things,’ which though proven at trial and unchallenged on appeal, are generally relegated to the dustbin in the majority opinion.”
A similar dynamic played out this Oct. 21, when the US Supreme Court allowed Alabama to prohibit voters with disabilities or a high degree of vulnerability to COVID-19 from casting their ballots curbside at polling places. A district court judge, Abdul Kallon, had initially ruled that counties could offer curbside voting because the evidence showed that COVID infections and related deaths had consistently stayed high in Alabama and that voting indoors could be risky to many. A majority of Supreme Court justices ignored that finding, prompting Justice Sonia Sotomayor to write in her dissent: “We should not substitute the District Court’s reasonable, record-based findings of fact with our own intuitions about the risks of traditional in-person voting during this pandemic or the ability of willing local officials to implement adequate curbside voting procedures.”
This is what is at stake: facts and fairness. Facts diligently deliberated over by district court judges — facts established by carefully balancing principles of fairness against other values — are being dismissed in decisions that limit voting rights.
In Texas, for example, earlier this fall a federal district court judge found that Governor Greg Abbott’s attempt to limit the number of ballot boxes would confuse voters ahead of the election. But days later, a three-judge panel — all Trump appointees — ruled that Governor Abbott did not need to provide evidence of actual voter fraud to justify the move. In Ohio, a US district judge, Dan Aaron Polster, found that a similar limit on ballot drop boxes would present “a reasonable concern” for many voters. For evidence of this unfair burden, Polster observed that 15 percent of Cleveland’s voters, “who are primarily poor and persons of color,” might need to travel more than 90 minutes to deposit their ballots in the closest drop box. But a Trump appointee on the Sixth Circuit Court of Appeals, Amul Thapar, cast the deciding vote to uphold Ohio’s attempt to make voting harder.
Brenda Wright, senior adviser for legal strategies at Demos, a think tank, says that “when appellate courts substitute their own view of the facts for the facts determined by the district court in a voting rights case” — as the 11th Circuit did in the Amendment 4 case, “they usurp the role of the district court and do a grave disservice to long-established judicial norms.”
As for the effects: A recent analysis by the Tampa Bay Times, Miami Herald, and ProPublica determined that fewer than 50,000 Floridians with felony convictions have registered to vote since Amendment 4 took effect.
Caleb Gayle is a New America Fellow and author of a forthcoming book about Black Native Americans from Riverhead Books.