Prohibiting the Punishment of Poverty: The Abolition of Wealth-Based Criminal Disenfranchisement


The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is needed to ensure that no individual is prevented from voting because of their poverty. This Note argues wealth-based criminal disenfranchisement should be completely abolished.


On November 6, 2018, Floridians overwhelmingly passed a ballot initiative approving a state constitutional amendment known as Amendment 4.1Frances Robles, 1.4 Million Floridians with Felonies Win Long-Denied Right to Vote, N.Y. Times *Nov. 7, 2018), []; Tim Mak, Over 1 Million Florida Felons Win Right to Vote with Amendment 4, NPR (Nov. 7, 2018, 2:46 AM), [] (reporting that 64% of voters voted in favor of Amendment 4). This amendment re-enfranchised individuals with felony convictions who had completed “all [the] terms of [their] sentence including parole or probation.”2Fla. Const. art. VI, § 4(a)–­(b) (amended 1992 and 2018). As a result, an estimated 1.4 million people were eligible for re-enfranchisement.3See Jones v. Governor of Florida, 950 F.3d 795, 800 (11th Cir. 2020). After hearing about Amendment 4’s passage, Rosemary McCoy, a Black woman with a felony conviction who had completed her sentence, stated:

I thought, “Oh, my God! A piece of liberation. A piece so that maybe we can feel whole again.” I thought maybe I could feel more positive and have a desire to move forward and look at America in a different way. I could see the power and the truth that our votes do count — until Senate Bill 7066 came along.4Fabiola Cineas, What It’s Like to Be Formerly Incarcerated and Fight for the Right to Vote, Vox (Sept. 22, 2020, 8:30 AM), [].

However, Senate Bill 7066, a bill passed by the Republican-controlled legislature, created an additional, unforeseen barrier: eligible felons would have to pay all of their legal financial obligations (LFOs) to be eligible to vote.5Id.; Fla. Stat. § 98.0751(2)(a) (2020). Legal financial obligations, which can include fines, fees, restitution payments, and other financial payments associated with a person’s interaction with the criminal justice system, are also referred to as “LFOs,” or more generally, court debt. See Campaign Legal Ctr. & Georgetown L. C.R. Clinic, Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax 20 (2019), [] [hereinafter Can’t Pay, Can’t Vote]. By interpreting the amendment’s phrase “all terms of sentence” to include the payment of legal financial obligations, the state legislature severely limited who was eligible for re-enfranchisement.6See Can’t Pay, Can’t Vote, supra note 5, at 22–23. An estimated four-in-five individuals with felony convictions who would otherwise be eligible to vote were ineligible because they were unable to pay their outstanding court debts.7Supplemental Expert Report of Daniel A. Smith at 4, Jones v. DeSantis, No. 19-cv-00300 (N.D. Fla. Sept. 17, 2019) [hereinafter Smith Expert Report], []. Moreover, Florida “has been unable to identify, for persons otherwise qualified for reenfranchisement [sic], the precise amount of their LFO obligation, making it literally impossible for [these persons] to satisfy the law’s requirement even if they are financially able to.”8Margaret Love & David Schlussel, Collateral Consequences Res. Ctr., Who Must Pay to Regain the Right to Vote? A 50-State Survey 1 (2020), [].

In an effort to firmly establish the statute’s meaning, Florida Governor Ron DeSantis requested an advisory opinion from the Florida Supreme Court to determine whether the phrase “all terms of sentence” includes payment of legal financial obligations.9Advisory Opinion to the Governor Re: Implementation of Amendment 4, The Voting Restoration Amendment, No. SC19-1341, 288 So. 3d 1070, 1072 (Fla. 2020). The Florida Supreme Court ruled in the affirmative, holding that this phrase does include all legal financial obligations.10See id.

In a series of lawsuits, plaintiffs alleged that this statute violated the Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution, as well as the Florida Constitution. A federal district court agreed; Judge Hinkle, a Clinton appointee, held that the statute violated the Equal Protection Clause, as applied to individuals who were unable to pay, and the Twenty-Fourth Amendment’s prohibition on “any poll tax or other tax.”11Jones v. DeSantis, 462 F. Supp. 3d 1196, 1234 (N.D. Fla. 2020), hearing en banc ordered sub nom. McCoy v. Governor of Florida, No. 20-12003, 2020 WL 4012843 (11th Cir. July 1, 2020), rev’d and vacated sub nom. Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020). However, in an appeal, Governor DeSantis made a rare request by asking the full Eleventh Circuit to hear the case due to its “exceptional importance.”12See Dara Kam, Amendment 4: DeSantis Files Unusual Appeal of Order Allowing Ex-Felons to
, Orlando Sentinel (June 10, 2020, 5:02 PM),—20200610-kpn4k6ioxbewtkizltakuyvg4y-story.html [].
DeSantis knew that the ten-justice en banc panel consisted of five Trump appointees, two of whom served on the Florida Supreme Court when it issued the initial advisory opinion.13Even after a petition to force their recusal, these conflicted judges refused to recuse themselves. See Lawrence Mower, Florida Judges Stand Out During Felon Voting Rights Case, Tampa Bay Times (Aug. 18, 2020), []. Reversing the district court, the Eleventh Circuit upheld the statute as constitutional.14Jones v. Governor of Florida, 975 F.3d 1016, 1016–17 (11th Cir. 2020).

Florida’s legislative reform and subsequent litigation has brought needed national attention to the issue of wealth-based criminal disenfranchisement15This Note uses the phrase “criminal disenfranchisement” to describe this issue instead of “felon disenfranchisement” due to the presence of several state laws that explicitly or implicitly disenfranchise individuals with misdemeanors and felony convictions. See generally Ariel White, Misdemeanor Disenfranchisement? The Demobilizing Effects of Brief Jail Spells on Potential Voters, 113 Am. Pol. Sci. Rev. 1 (2019) (finding misdemeanor jail sentences decreased voting participation). and has exposed major flaws in recent reform efforts.16See Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 60–61 n.17 (2019). In all but two states and the District of Columbia, individuals are stripped of their voting rights once incarcerated.17Currently, only Maine and Vermont allow individuals in prison to vote. See Chris Uggen, Ryan Larson, Sarah Shannon & Arleth Pulido-Nava, The Sent’g Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 6 (Oct. 30, 2020), []. D.C. temporarily allowed incarcerated individuals to vote in the 2020 election and intends to make this permanent in the future. See id. It is estimated that 5.17 million individuals are disenfranchised due to a criminal conviction.18Id. at 4. These individuals are disproportionately Black. Black individuals are disenfranchised 3.7 times more than non-Black individuals, resulting in the disenfranchisement of more than 6.2% of the Black adult voting-age population, compared to 1.7% of the non-Black adult voting-age population.19Id.

The vast majority of states further restrict voter eligibility based on whether an individual owes court debt. This practice of wealth-based criminal disenfranchisement directly limits a person’s access to the political process because of their income. Wealth-based criminal disenfranchisement should violate the Supreme Court’s holding in Bearden v. Georgia that the state cannot “punish[] a person for his poverty.”20Bearden v. Georgia, 461 U.S. 660, 671 (1983). Yet, despite the fact that “[v]oting is simply too fundamental a right to condition on whether a person has made a monetary payment,”21Crim. Just. Pol’y Program, Harv. L. Sch., Confronting Criminal Justice Debt: A Guide for Policy Reform 23 (2016), []. wealth-based criminal disenfranchisement is common throughout the United States. Legal challenges and statutory reforms have attempted to prevent states from disenfranchising individuals because of their income.22 See, e.g., Fla. Const. art. VI, § 4(a)–(b) (amended 1992 and 2018); Jones v. Governor of Florida, 975 F.3d 1016, 1016–17 (11th Cir. 2020). As this Note will demonstrate, however, these legal challenges and statutory reforms have fallen short. Courts have blocked plaintiffs’ actions, and statutory loopholes have impeded the success of legislative reforms. This Note proposes a more comprehensive reform to ensure no individual is prohibited from voting because of their income: the complete abolition of wealth-based criminal disenfranchisement at the state level.

Part I of this Note describes wealth-based criminal disenfranchisement and its impact on low-income and minority communities. Part II discusses legal challenges, arguments presented in those challenges, and failed legislative reforms. Part III examines various reforms, ultimately urging states to abolish wealth-based criminal disenfranchisement.

I. The Economic Limitations of Criminal Disenfranchisement

Thirty states authorize wealth-based criminal disenfranchisement, the practice by which states prevent formerly incarcerated individuals from regaining the right to vote solely because they owe legal financial obligations.23See Can’t Pay, Can’t Vote, supra note 5, at 21. Traditionally, state law determines voter eligibility, even for individuals with federal convictions.24See Cherish M. Keller, Re-Enfranchisement Laws Provide Unequal Treatment: Ex-Felon Re-Enfranchisement and the Fourteenth Amendment, 81 Chi.-Kent L. Rev. 199, 217–18 (2006). Because state processes for re-enfranchisement vary, the format of reforms will depend on these existing processes.25See Colgan, supra note 16, at 55. This Part discusses the practice of wealth-based criminal disenfranchisement, why and how states implement it, and its devastating effects on low-income populations.

A. The Imposition of Monetary Sanctions

The United States frequently imposes a variety of legal financial obligations on individuals as a result of their criminal convictions. Legal financial obligations can include different types of court debt, such as attorney appointment fees, incarceration fees, drug conviction fines, late fees, victim compensation and restitution fees, and other charges related to an individual’s criminal conviction.26See Can’t Pay, Can’t Vote, supra note 5, at 20; see also Erika L. Wood & Neema Trivedi, The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev. J. Poverty L. & Pol’y 30, 37–38 (2007). Fines are imposed as part of an individual’s sentence as punishment for their criminal behavior and to deter future crimes, and are frequently subject to judicial discretion.27Mathilde Laisne, Jon Wool & Christian Henrichson, Vera Inst. of Just., Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans 11 (2017), []. Fees can also be imposed by judicial discretion, but they are not part of the person’s sentence and do not serve to punish the individual.28Id. at 12. Instead, fees are used to generate revenue.29Id. Both fines and fees may be associated with additional late fees and interest payments that increase the amount of debt one owes to the legal system.30See Can’t Pay, Can’t Vote, supra note 5, at 20.

The amount of debt imposed on individuals who interact with the legal system has grown significantly over time due to increased costs from and the growth of the criminal justice system. States have funded this growth by adding new types of legal financial obligations to state penal codes, increasing existing fines and fees amounts, and reducing administrative costs by privatizing prisons.31See Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 23–24 (2016); see also Hadar Aviram, The Correctional Hunger Games: Understanding Realignment in the Context of the Great Recession, 664 Annals, AAPSS 260–79 (2016). This increase has resulted in “[a]n estimated 10 million people ow[ing] more than $50 billion in debt.”32Douglas N. Evans, John Jay Coll. of Crim. Just., The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration 7 (2014), []. The national average debt incurred from court fines and fees, attorney fees, and restitution is $13,607, not including commissary or other related expenses.33Saneta deVuono-powell, Chris Schweidler, Alicia Walters & Azadeh Zohrabi, Ella Baker Ctr. for Hum. Rts., Forward Together & Rsch. Action Design, Who Pays? The True Cost of Incarceration on Families 13 (2015), [].

Paying off these debts is a complicated, arduous process that lacks transparency and leaves many individuals without assistance or information about how to pay. Some individuals do not even know how much they owe due to a lack of information. For example, after being purged from the voter rolls for a conviction twenty years prior, Alfonzo Tucker Jr. thought he had to pay a $135 late fee to vote; however, after he was denied the franchise, the state informed him that he did not have to pay this late fee and only had to pay his remaining balance of four dollars to vote.34Can’t Pay, Can’t Vote, supra note 5, at 10. For individuals owing larger debts, full payment may take decades. Edna Kathleen Lewis, a formerly incarcerated individual, will be ninety-five years old before she is able to pay off her debts.35Id. at 9. Additionally, these debts can increase exponentially because of interest payments. One victim of domestic violence saw her debt grow from $33,000 to $72,000 after making payments for thirteen years.36Alana Semuels, The Fines and Fees That Keep Former Prisoners Poor, Atlantic (July 5, 2016), []. Not only are these debts difficult to pay off, but they often exacerbate other issues felt by returning citizens, including a lack of housing, substance abuse problems, and issues securing employment.37See Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Ctr. for Just., Criminal Justice Debt: A Barrier to Reentry 4 (2010), [].

Further, formerly incarcerated individuals have an especially difficult time paying off these debts due to their lower earning potential. Formerly incarcerated individuals have a 52% lower annual income than their peers who have not been incarcerated.38Terry-Ann Craigie, Ames Grawert & Cameron Kimble, Brennan Ctr. for Just., Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality 14 (2020), []. Consequently, formerly incarcerated individuals earn, on average, almost half a million dollars less than their peers over the course of their careers solely because of incarceration; this is due in part to the stigma of incarceration, barriers to employment, mental and physical health challenges, and missed professional opportunities.39Id. at 6, 13.

B. The Purpose of Court Debt

According to scholars, legislators impose court debt for three main reasons: (1) to punish offenders, (2) to provide victims with financial compensation, known as restitution, and (3) to fund public services.40Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 Penn State L. Rev. 349, 378 (2012). Although the first two rationales for using fines and fees are cited by state legislatures, the third rationale, public cost recovery, has emerged as the most common reason for imposing fines and fees on individuals who interact with the legal system. As this Section discusses, however, there is another—unstated—reason for imposing court debt on individuals who interact with the legal system: partisanship.

Public cost recovery is the main reason state legislators impose court debt on individuals who interact with the legal system. For example, over 600 jurisdictions in the U.S. use fines and fees to fund more than 10% of their general revenue funds. 41Mike Maciag, Addicted to Fines: Small Towns in Much of the Country Are Dangerously Dependent on Punitive Fines and Fees, Governing (Aug. 19, 2019), []. For 284 of those jurisdictions, that number increases to more than 20%.42Id. The most commonly used mechanism to accomplish these percentages is through user fees.43See, e.g., Fla. Const., art. V, § 14(b) (amended 1998) (mandating that “[a]ll funding for the offices of the clerks of the circuit and county courts . . . be provided by adequate and appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions” with limited exceptions); see also Bannon et al., supra note 37, at 4. A user fee is a type of fee charged to formerly incarcerated individuals as a result of their interactions with the criminal justice system.44See Cammett, supra note 40, at 378–79. These fees have increased significantly in recent years45Id. and have had a stark impact on Black communities. Studies have shown that, regardless of budgetary needs, the higher a municipality’s percentage of Black residents, the more likely the municipality is to rely on revenue from user fees.46In one study, “86% of the cities in our sample obtain[ed] at least some revenue through fines and fees, with an average of about .00 per capita” in cities with low Black populations, compared to “about .00 higher per capita” in cities with the highest Black populations. Michael W. Sances & Hye Young You, Who Pays for Government? Descriptive Representation and Exploitative Revenue Sources, 79 J. Pol. 1090, 1091–92 (2017). States also depend on user fees to finance other aspects of government that have no relation to a person’s criminal conviction, such as supplementing state retirement funds and even financing political campaigns.47In Arizona, “the fines and fees collected from convicts––who are unable to vote in Arizona elections while they remain debtors––help fund Arizona’s statewide election campaigns.” Harris, supra note 31, at 46.

Revenue collection is not the only reason legislatures require payment of fees. Partisanship also motivates legislatures to adopt disenfranchisement policies. Scholars have shown criminal disenfranchisement may hurt the Democratic party.48See Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 190–91 (2006); Colgan, supra note 16, at 144 n.464. This is because many formerly incarcerated individuals “come from poor or working-class urban districts, with low incomes, few job prospects, and low levels of formal education.”49 . Manza & Uggen, supra note 48, at 183. The combination of these factors tends to “push the ‘average’ felon toward the Democratic Party in any given electoral contest.”50Id. Since these individuals are largely low-income minorities who tend to vote Democratic, Republicans have used financial voting restrictions as a way to increase their own political power.51Id. at 182–83. Republicans have criticized Democratic efforts to help pay off fines and fees, such as recent criticism of Michael Bloomberg. See Jordan Fabian & Josh Wingrove, Trump Calls Bloomberg ‘Criminal’ for Helping Florida Felons Vote, Bloomberg (Sept. 24, 2020, 2:57 PM), []. Additionally, the Florida Attorney General threatened to prosecute Bloomberg for these actions. See Nicole Via y Rada, Florida AG Calls for Investigation into Bloomberg-Backed Felon Voting Rights Effort, NBC News (Sept. 23, 2020, 6:30 PM), [].

Although the exact effect is hard to determine, re-enfranchisement of all formerly incarcerated individuals could have a significant electoral impact.52See Jeff Manza & Christopher Uggen, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 Am. Socio. Rev. 777, 789–92 (2002). Since 1970, at least one presidential election and seven senate elections might have had different outcomes if formerly incarcerated individuals, who tend to vote Democratic, had been allowed to vote.53Id. These conclusions demonstrate not only the strong political impact of re-enfranchisement on election outcomes, but also the weaponization of court debt by legislatures for their own political gain.

C. The Discretionary Imposition of Wealth-Based Criminal Disenfranchisement

The amount of court debt imposed on an individual due to their interactions with the legal system can severely impact their ability to pay off these debts and thus restrict their right to vote.54See Can’t Pay, Can’t Vote, supra note 5, at 20. If a person cannot pay off their court debts, many states conduct an ability-to-pay determination before disenfranchising them further.55See Crim. Just. Pol’y Program, supra note 21, at 26 (noting that ability to pay determinations are required before an individual is jailed for nonpayment). If the court concludes after an ability-to-pay hearing that the formerly incarcerated individual is genuinely unable to pay, their voting rights will be restored, regardless of the presence of court debt. This process is discussed further in Part III.

An individual’s personal finances may not be the only factor in determining whether they are able to pay. Governmental actors are frequently forced to use their discretion to determine whether an individual is able to pay. For example, during ability-to-pay hearings, Floridians must demonstrate they have a “genuine inability to pay.”56See Jones v. Governor of Florida, 950 F.3d 795, 805 (11th Cir. 2020). Such statutes fail to provide additional guidance to help governmental actors make these ability-to-pay determinations.57See Bannon et al., supra note 37, at 14. For instance, such direction could provide an income cut-off or instruct decision-makers to examine recent changes in the person’s income, family expenses, or debts to see whether that person can afford to pay.

Although the Supreme Court has put in place safeguards to prevent deprivations of liberty in ability-to-pay determinations,58These safeguards include “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Turner v. Rogers, 564 U.S. 431, 447–48 (2011). these safeguards provide the bare minimum of procedural protections required by the Supreme Court’s decision in Mathews v. Eldridge;59See Mathews v. Eldridge, 424 U.S. 319, 320–22 (1976). they offer no real protection in this context and give no explicit guidance for how courts should determine whether someone is unable to pay. Without direction, judges are vested with the discretion to unilaterally determine whether an individual is able to pay, leading to drastically different standards and applications.60See, e.g., Colgan, supra note 16, at 75 (examining different standards and applications in ability-to-pay determinations). Thus, an individual who is genuinely unable to pay their legal financial obligations may be prohibited from exercising their right to vote simply because the judge adjudicating the ability-to-pay hearing did not take into account their entire financial situation, or believe that they were able to pay when they could not.

Arbitrary decisions made in other stages of the judicial process can also impact whether an individual is deemed able or unable to pay and can thereby impact voting eligibility. For instance, government officials often decide whether to require payment or to waive an individual’s court debt altogether,61See generally Can’t Pay, Can’t Vote, supra note 5, at 29–31. whether to grant an executive pardon waiving all or part of their court fees as a requirement for re-enfranchisement,62See Colgan, supra note 16, at 83. or whether to require payment as a condition of parole or probation.63See, e.g., Mo. Rev. Stat. § 559.100(2) (2021). Arbitrary decision-making can have the most detrimental impact when a governmental agent is deciding whether an individual is required to pay court debt as a condition of release from parole or probation. Some states explicitly require payment as a supervision condition for parole and/or probation,64See, e.g., Del. Code Ann. tit. 11, § 4104(a)(3) (2021); N.M. Stat. Ann. § 31-21-10 (2021). while others make payment an optional supervision condition.65See, e.g., Mo. Rev. Stat. § 559.100(2) (2021).

The discretionary nature of ability-to-pay determinations means that the actions of individual judges directly affect whether an individual is deemed able to pay. These disconnected decisions lead to inconsistent results, which often have a disproportionately negative impact on racial and ethnic minorities due to subconscious biases.66The influence of subconscious biases on judicial outcomes is well-documented. See, e.g., Harris, supra note 31, at 26; Irene Oritseweyinmi Joe, Regulating Implicit Bias in the Federal Criminal Process, 108 Calif. L. Rev. 965, 968–74 (2020). Layers of discretionary decision-making may lead to drastically different payment amounts for individuals of different races, even if they have similar income levels, resulting in the disenfranchisement of more minorities than non-minorities.

D. The Effects of Wealth-Based Criminal Disenfranchisement on Low-Income Individuals

The collateral consequences of wealth-based criminal disenfranchisement impact low-income, formerly incarcerated individuals at an alarming rate, with an even greater burden felt by Black formerly incarcerated individuals.67See generally Bannon et al., supra note 37, at 4, 13, 29; Cammett, supra note 39, at 353–55. In a recent expert report, Professor Daniel A. Smith analyzed the impact of Florida’s recent statute on voter eligibility.68This study was conducted as part of an expert report for litigation challenging Florida’s new statute requiring payment of court debt for re-enfranchisement. See Smith Expert Report, supra note 7. He concluded that “[d]ue to outstanding [legal financial obligations] . . . fewer than one-in-five—just 105,941 of the 542,207 [formerly incarcerated] individuals . . . are likely to be qualified to register to vote under SB7066.”69Smith Expert Report, supra note 7, at 19–20. These ineligible voters are unable to pay their fines and fees and are thus disenfranchised solely because of their income. Smith’s conclusions demonstrate the widespread, detrimental impact these policies have specifically on low-income individuals. Thus, policies that disenfranchise individuals because of unpaid court debt exclude a large number of otherwise eligible voters from voting solely because of their income.

This financial barrier to full re-enfranchisement creates “shadow citizens” 70Cammett, supra note 40, at 352. trapped in a “potential lifetime of disenfranchisement.”71Crim. Just. Pol’y Program, supra note 21, at 23. Three-fourths of individuals have difficulties paying off their court debts,72See Rachel L. McLean & Michael D. Thompson, Council of State Gov’ts Just. Ctr., Repaying Debts 8 (2007), []. resulting in payments stretching over long periods of time. These barriers to full payment deprive individuals of a fundamental part of American life: participation in the democratic process. This clearly “runs counter to the modern ideal of universal suffrage.”73Erika L. Wood, Brennan Ctr. for Just., Restoring the Right to Vote 4 (2009), [].

In addition, legal financial obligations can lead to other immediate consequences. If an individual cannot afford to pay their obligations, they could lose their driver’s license, their home, their car, their life savings, and even their freedom. In many jurisdictions, the consequences of being unable to pay can include further incarceration.74See McLean & Thompson, supra note 72, at 8. Despite the fact that the Supreme Court case Bearden v. Georgia requires courts to inquire into a person’s ability to pay before incarcerating them, courts frequently ignore this and incarcerate individuals who cannot pay. See Andrea Marsh & Emily Gerrick, Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons, 34 Yale L. & Pol’y Rev. 93, 98–104 (2015). Individuals often face a choice: pay their fines and fees or sacrifice necessities like food or utilities. Keith, a sixty-one-year-old Black man, was forced to deprive his family and himself of running water to pay off court debt that accumulated after he wrote a bad check in 2014.75See Laisne et al., supra note 27, at 1. After he was berated and humiliated by a judge in court for failing to pay his debts, Keith’s debt took over his life.76See id. at 2. Keith described it as:

Wake up in the morning, that’s all you think about. “How can I pay this off?” ‘Til the time you go to bed. “What can I do? What can I do? Where can I make a large amount of money that I can get this from behind me?” Every day, every minute that’s what I think about . . . . That’s all I’m thinking about right now, nothing else. What can I do?77Id. at 22.

Legal financial obligations are not only “a substantial obstacle to reentry,” they also create a “cycle of re-incarceration and cyclical recidivism.”78Cammett, supra note 40, at 354. Studies have shown that voting and recidivism are statistically correlated, with many formerly incarcerated individuals “bring[ing] their behavior into line with the expectations of the citizen role, avoiding further contact with the criminal justice system” once they are re-enfranchised.79Jeff Manza & Christopher Uggen, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193, 215 (2004). Since “the act of voting manifests the desire to participate as a law-abiding stakeholder,” allowing these individuals to re-join society and participate in the political process may actually reduce criminal activity and recidivism.80Id. at 213.

E. The Disparate Impact of Wealth-Based Criminal Disenfranchisement on Black Communities

Wealth-based criminal disenfranchisement has a disparate impact on Black communities. Historically, voting restrictions, such as poll taxes, literacy tests, and felon voting prohibitions, were used to suppress the Black vote.81See Wood & Trivedi, supra note 26, at 30. Today, wealth-based criminal disenfranchisement continues to disenfranchise Black voters and perpetuate racist disenfranchisement practices.82. See Cammett, supra note 40, at 364–69. See generally Smith Expert Report, supra note 7, at 18–19. This effect on Black communities has led scholars to term the practice a “modern day poll tax,” arguing that requiring individuals to pay legal financial obligations to be eligible to vote closely resembles historical poll taxes designed to suppress the Black vote.83. See, e.g., J. Whyatt Mondesire, Felon Disenfranchisement: The Modern Day Poll Tax, 10 Temp. Pol. & C.R. L. Rev. 435, 437 (2001); Wood & Trivedi, supra note 26, at 35.

Additionally, Black offenders have an even more difficult time paying off their debts because they generally earn less than white offenders. After controlling for factors like education, age, and work history, Black offenders generally earn 10% less than white offenders.84Evans, supra note 32, at 11. A stark racial-economic divide between eligible and ineligible voters has emerged, revealing wealth-based criminal disenfranchisement’s devastating impact on low-income Black communities.

Academics analyzing the impact of Florida’s new statute on racial minorities found that, of all eligible former felons, “only 10.3% of [Black individual]s, compared to 15.7% of white individuals, may be eligible to register and vote under SB7066 because they have paid off their [legal financial obligations].”85Smith Expert Report, supra note 7, at 18–19. This means that an estimated nine in ten Black individuals with felony convictions, compared to six in seven similarly-situated white individuals, still owed legal financial obligations and were thus ineligible to vote.86Id.

Financial barriers also create a chilling effect that prevents eligible individuals from voting. By creating a culture of intimidation and misunderstanding surrounding eligibility and voter registration, the electoral process dissuades eligible voters from voting due to a lack of information.87See, e.g., Melanie Bowers & Robert R. Preuhs, Collateral Consequences of a Collateral Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation of Nonfelons, 90 Soc. Sci. Q. 722, 738, 740 (2009); see also Complaint at 6, Gruver v. Barton, No. 19-cv-00121 (N.D. Fla. June 28, 2019), []. This chilling effect is felt by Black communities and disenfranchised individuals more broadly, resulting in reduced voter turnout in these marginalized communities.88Beth A. Colgan, Beyond Graduation: Economic Sanctions and Structural Reform, 69 Duke L.J. 1529, 1554 (2020). Thus, restoring voting rights to individuals who owe criminal court debt and notifying them of their re-enfranchisement could improve overall voter turnout in Black communities, help re-integrate formerly incarcerated individuals into society, and reduce recidivism.89Id. See generally Cammett, supra note 40, at 352–54, 375–78, 400–01.

II. Legal Challenges and Legislative Reforms

Although the Supreme Court has held that the right to vote is fundamental and essential to our democracy,90E.g., Reynolds v. Sims, 377 U.S. 533, 561–62 (1964); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 708 (N.D. Ohio 2006). the Court has interpreted the Fourteenth Amendment to exclude formerly incarcerated individuals from this constitutional guarantee.91See Richardson v. Ramirez, 418 U.S. 24, 54 (1974). Since the Court decided in Richardson v. Ramirez that the right to vote for formerly incarcerated individuals is not fundamental, the Court has applied rational basis review to statutes that disenfranchise formerly incarcerated individuals.92See id. at 54–55; Cammett, supra note 40, at 389–91. Recent precedent from the Eleventh Circuit suggests that courts will continue applying rational basis review in similar cases.93See Jones v. Governor of Florida, 975 F.3d 1016, 1030 (11th Cir. 2020). Given the high bar necessary to overcome rational basis review, this trend will drastically limit the efficacy of legal challenges to wealth-based criminal disenfranchisement. As a result, judicial reform is unlikely to eliminate the practice of wealth-based criminal disenfranchisement.

Different types of legislative reforms have also been proposed. Statutory reforms have emerged to standardize court debt policies. Yet these efforts have failed at the federal level. In 2019, the House of Representatives passed the For the People Act, which prohibited suspending voting rights for formerly incarcerated individuals unless they were currently serving a sentence or in a correctional facility or institution.94For the People Act of 2019, H.R. 1, 116th Cong. § 1402 (2019). However, former Senate Majority Leader Mitch McConnell publicly criticized the bill and stalled it in the Senate.95See Matthew Haag, Mitch McConnell Calls Push to Make Election Day a Federal Holiday a Democratic ‘Power Grab, N.Y. Times (Jan. 31, 2019), []. Although the 117th Congress may be less gridlocked than the previous Congress due to Democratic control, historical debate over this issue may still make federal legislative reform difficult. As a result, state legislatures are the only remaining avenue of legislative reform.96See, e.g., Keller, supra note 24, at 230–33 (discussing numerous federal bills that have been introduced but have failed to pass). State-level reforms have been implemented, but as discussed below, these reforms have also failed to eliminate wealth-based criminal disenfranchisement. For example, state reforms, such as the legislation interpreting Florida’s Amendment 4 discussed above, have created loopholes due to vague statutory language.97See Fla. Stat. § 98.0751(2)(a) (2020); supra text accompanying note 5. This Part discusses legal precedent, arguments made in legal challenges to wealth-based criminal disenfranchisement, and state reforms.

A. Court Precedent Involving Wealth-Based Criminal Disenfranchisement

The Supreme Court has not considered the specific question of whether wealth-based criminal disenfranchisement is constitutional.98The Supreme Court denied a motion to vacate a stay put in place by the Eleventh Circuit in Jones v. DeSantis, but did not address the merits of this question. See Raysor v. DeSantis, 140 S. Ct. 2600 (2020). (stating that the Supreme Court has only heard two criminal disenfranchisement cases: Richardson v. Ramirez and Hunter v. Underwood). However, it has heard the question of whether criminal disenfranchisement in general is constitutional. The Court upheld criminal disenfranchisement in Richardson v. Ramirez, stating that Section Two of the Fourteenth Amendment allows states to prohibit individuals who “participat[ed] in rebellion or other crime[s]” from voting.99Richardson v. Ramirez, 418 U.S. 24, 42 (1974). In Richardson, the Court held that a state can “exclude from the franchise convicted criminals who have completed their sentence and paroles,”100Id. at 56. because “the exclusion of felons from the vote has an affirmative sanction in [Section Two] of the Fourteenth Amendment.”101Id. at 54. As a result, Richardson requires courts to apply rational basis review to laws that limit the right to vote for formerly incarcerated individuals.102See id. at 54–55. Because rational basis review is difficult to overcome, this practice impedes constitutional challenges to wealth-based criminal disenfranchisement. Although challenges can be brought if there is evidence of intentional racial discrimination, such discrimination presents an extremely high evidentiary burden which is very difficult to meet.103E.g., Hunter v. Underwood, 471 U.S. 222, 222 (1985) (holding that a criminal disenfranchisement statute can be struck down if there is evidence of purposeful racial discrimination, which was met by the legislature’s explicit goal of establishing white supremacy).

Unlike the Supreme Court, circuit courts have addressed whether wealth-based criminal disenfranchisement is constitutional. The Sixth, Ninth, and Eleventh Circuits all agree that rational basis review should apply to statutes that disenfranchise formerly incarcerated individuals because of unpaid court debt.104See Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020); see also Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010); Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). Although the Ninth Circuit upheld a wealth-based criminal disenfranchisement statute under rational basis review, it indicated that, for individuals who are found unable to pay through an ability-to-pay determination, statutes that disenfranchise them because of unpaid court debt may not even pass the rational basis test.105Harvey, 605 F.3d at 1080 (“Perhaps withholding voting rights from those who are truly unable to pay their criminal fees due to indigency would not pass this rational basis test . . . .”). Although the most recent decision from the Eleventh Circuit seemed to reject this claim, approval of this argument in other lower court decisions may nevertheless indicate a willingness to accept it in future litigation.106See Jones v. DeSantis, 462 F. Supp. 3d 1196, 1219 (N.D. Fla.), hearing en banc ordered sub nom. McCoy v. Governor of Florida, No. 20-12003, 2020 WL 4012843 (11th Cir. July 1, 2020), rev’d and vacated sub nom. Jones, 975 F.3d at 1016 (quoting Jones v. Governor of Florida, 950 F.3d 795, 813 (11th Cir. 2020)) (“Quite simply, Florida’s continued disenfranchisement of these seventeen plaintiffs is not rationally related to any legitimate governmental interest.”).

In 2020, the Eleventh Circuit overturned its own prior decision affirming a preliminary injunction in favor of the plaintiffs and applied rational basis review to wealth-based classifications.107See Jones, 975 F.3d at 1027, 1029–30. Here, the plaintiffs challenged a Florida statute that limited re-enfranchisement to individuals with felony convictions who had paid their legal financial obligations.108Id. at 1025. Previously, a panel of the Eleventh Circuit held that heightened scrutiny, not rational basis, applied.109See Jones, 950 F.3d at 817. Since these plaintiffs were genuinely unable to pay their court debts, the Eleventh Circuit panel held that this requirement was a wealth-based classification that restricted voter access and, therefore, merited heightened scrutiny.110See id. As a result, the Eleventh Circuit panel created a “narrow exception to traditional rational basis review: the creation of a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay . . . solely on account of wealth—by withholding access to the ballot box.”111Id. at 809. After applying heightened scrutiny to the classification at issue, the Eleventh Circuit panel determined that “the [legal financial obligations] requirement is likely unconstitutional as applied to these seventeen plaintiffs” for violating the Fourteenth Amendment.112Id. at 827.

Yet a few months later, the en banc Eleventh Circuit overruled this decision, holding that rational basis review.113Jones, 975 F.3d at 1032–33. Because “Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those who have not,” the Eleventh Circuit en banc held that this statute was constitutional.114Id. at 1035.

B. Federal Constitutional and Statutory Arguments

Litigants have unsuccessfully challenged state statutes that disenfranchise formerly incarcerated individuals because of unpaid court debt under the United States Constitution.115See, e.g., Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020); Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010); Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). In addition, litigants have challenged state statutes under individual state constitutions. These challenges are state-specific and are therefore not discussed in this Note. Scholars and litigators have argued criminal disenfranchisement violates the First Amendment’s protection of free speech,116See, e.g., Jones v. DeSantis, 462 F. Supp. 3d 1196, 1204 (N.D. Fla. 2020). See generally Janai S. Nelson, The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint, 65 Fla. L. Rev. 111 (2013). the Eighth Amendment’s ban on cruel and unusual punishment,117See, e.g., Thiess v. State Admin. Bd. of Election L., 387 F. Supp. 1038, 1042 (D. Md. 1974). See generally Amy Heath, Comment, Cruel and Unusual Punishment: Denying Ex-Felons the Right to Vote After Serving Their Sentences, 25 Am. U. J. Gender Soc. Pol’y & L. 327 (2017) (arguing felon disenfranchisement laws violate the Eighth Amendment’s ban on cruel and unusual punishment). the Fourteenth Amendment’s Equal Protection Clause’s prohibition against race-based discrimination,118See DeSantis, 462 F. Supp. 3d at 1234. and Section Two of the Voting Rights Act,119See, e.g., Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). See generally Jamelia N. Morgan, Disparate Impact and Voting Rights: How Objections to Impact-Based Claims Prevent Plaintiffs from Prevailing in Cases Challenging New Forms of Disenfranchisement, 9 Ala. C.R. & C.L.L. Rev. 93 (2018) (discussing why challenges under Section 2 of the Voting Rights Act have failed and analyzing ways plaintiffs can ultimately prevail). but no higher court has accepted these arguments thus far. Nevertheless, lower courts have been receptive to arguments challenging these statutes under the Twenty-Fourth Amendment’s ban on poll taxes and the Fourteenth Amendment’s Equal Protection Clause,120See DeSantis, 462 F. Supp. 3d at 1234. which are examined below.

1. The Twenty-Fourth Amendment’s Ban on Poll Taxes

The Twenty-Fourth Amendment states that the right to vote cannot be limited for failure to pay “any poll tax or other tax” in federal elections.121U.S. Const. amend. XXIV, § 1. Litigants have argued state statutes that perpetuate wealth-based criminal disenfranchisement are poll taxes because they require payment of legal financial obligations before a person becomes eligible to vote.122See, e.g., DeSantis, 462 F. Supp. at 1203–04.

Although circuit courts have rejected this argument,123See Harvey v. Brewer, 605 F.3d 1067, 1080 (9th Cir. 2010); Johnson v. Bredesen, 624 F.3d 742, 750–51 (6th Cir. 2010); Jones v. Governor of Florida, 975 F.3d 1016, 1017 (11th Cir. 2020). lower courts have indicated that they may be more favorable to it, specifically for criminal justice fees.124See DeSantis, 462 F. Supp. 3d at 1232–34. In Jones v. DeSantis, the district court specifically stated that criminal fines were not a tax because their primary purpose was to punish the offender for their criminal conduct, unlike fees, which serve as a source of revenue regardless of the individual’s guilt or innocence. Id. The district court for the Northern District of Florida determined that if criminal justice fees were assessed for the sole or primary purpose of raising revenue, regardless of whether an individual is guilty of a criminal charge, these fees would likely be a poll tax and thus violate the Twenty-Fourth Amendment.125Id. In reaching this holding, the court stated that “if a fee assessed against a person who is not adjudicated guilty is a tax, then the same fee, when assessed against a person who is adjudicated guilty, is also a tax.”126Id. at 1234. In Florida, these fees were not only assessed solely for the purpose of generating revenue, as mandated by the State Constitution, but were also assessed against individuals who were adjudged guilty and those who entered no-contest pleas.127Fla. Const., art. V, § 14(b) (amended 1998). As a result, the district court concluded these fees constituted a tax.128See DeSantis, 462 F. Supp. 3d at 1234. Although this argument was rejected by the Eleventh Circuit,129See Jones v. Governor of Florida, 975 F.3d 1016, 1306–46 (11th Cir. 2020). it could be accepted in future litigation.

2. The Fourteenth Amendment’s Equal Protection Clause

Litigants have also argued statutes that disenfranchise formerly incarcerated individuals because of unpaid court debt deny these individuals equal protection under the law solely on the basis of their income.130See, e.g., DeSantis, 462 F. Supp. 3d at 1204; Harvey v. Brewer, 605 F.3d 1067, 1071 (9th Cir. 2010). As described in Part A, Richardson requires the application of rational basis review to statutes that disenfranchise individuals.131See Richardson v. Ramirez, 418 U.S. 24, 54–55 (1974). Thus, a statute only needs to be rationally related to a legitimate government interest to withstand constitutional review.132Id. Although some judges have expressed doubts over whether disenfranchisement is rationally related to the payment of court debts,133See, e.g., Stephens v. Yeomans, 327 F. Supp 1182, 1188 (D.N.J. 1970) (holding that there was no rational basis for disenfranchising resident citizens, and thus the statute was unconstitutional under the Fourteenth Amendment). There is an exception if there is evidence of purposeful racial discrimination, as was present in Hunter v. Underwood, however, this requires overt racial intent, which is extremely difficult to demonstrate. It is unlikely that litigants could successfully challenge these statutes as invidiously discriminating on the basis of race because of similar evidentiary issues. See Hunter v. Underwood, 471 U.S. 222, 233 (1985). all circuit courts that have addressed this question have upheld these statutes under rational basis review, and thus have rejected arguments that disenfranchisement violates the Fourteenth Amendment’s Equal Protection Clause.134See Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010); Johnson v. Bredesen, 624 F.3d 742, 746–47 (6th Cir. 2010); Jones v. Governor of Florida, 975 F.3d 1016, 1033–35 (11th Cir. 2020). If courts applied heightened scrutiny instead, as the district court did in Jones v. DeSantis,135See DeSantis, 462 F. Supp. 3d at 1217–18 (holding that, under heightened scrutiny, pay-to-vote systems for individuals who are genuinely unable to pay violate the Equal Protection Clause of the Fourteenth Amendment). litigants would likely be more successful in challenging these statutes under the Equal Protection Clause.136See, e.g., Jones v. Governor of Florida, 975 F.3d 1016, 1030–32 (11th Cir. 2020) (holding that, because this wealth-based classification did not create a suspect class, rational basis review instead of heightened scrutiny applied).

C. State Legislative Reforms

States use different mechanisms to disenfranchise individuals who owe court debt. The main mechanisms are: (1) conditioning re-enfranchisement on the payment of court debt through state statutes or state constitutions; (2) re-enfranchising individuals upon completion of all terms of their sentence; (3) requiring payment as a condition of release from parole or probation, an executive pardon, or clemency; (4) allowing the governor to re-enfranchise individuals through executive orders; or (5) requiring payment through one of the above mechanisms unless a person is determined unable to pay through a formal ability-to-pay hearing or similar adjudication.137See generally Colgan, supra note 16 (discussing the numerous ways states disenfranchise individuals because of unpaid court debt). Examples of specific mechanisms used by states are discussed in Part III of this Note. See infra Part III. Based on this author’s research, however, no state affirmatively prohibits wealth-based criminal disenfranchisement. States have addressed wealth-based criminal disenfranchisement in several ways, including through legislative reforms, constitutional amendments, and executive orders. As this Section explores, these reforms have flaws due to the presence of loopholes and other unforeseen design failures.

1. Statutory Reform: Florida

The State of Florida is a prime example of the evolution of criminal disenfranchisement in the United States and exemplifies why a bold legislative solution, as opposed to litigation, is necessary to solve this issue. Floridians overwhelmingly passed a constitutional amendment that granted the right to vote to individuals with felony convictions, but the Florida legislature subsequently passed a statute that limited the amendment’s re-enfranchisement provision to individuals with felony convictions who had paid their court debt.138See Fla. Const. art. VI, §4 (a)–(b) (amended 1992 and 2018); Fla. Stat. § 98.0751(2)(a) (2020). Specifically, this bill defined the statutory phrase “completion of all terms of sentence” to include payment of court debt due, which legislators said was necessary to clarify the phrase and prevent inconsistent interpretations.139See Pro. Staff of the Comm. on Rules, Fla. S., Bill Analysis and Fiscal Impact Statement, SB 70862 (Apr. 24, 2019), [] [hereinafter Fla. S. Pro. Staff]. The Florida Senate considered two bills (SB 7086 and SB 7066) to implement this statutory limitation to Amendment 4. SB 7086 was ultimately not passed because its companion bill, SB 7066, was passed. Analysis of SB 7086 is cited in this Note because it contained more applicable constitutional analysis than SB 7066. The Florida legislature said these two bills were “similar,” which, according to the Florida Legislature’s FAQ, means the bills were “substantially similar in text or have substantial portions of text that are identical or largely the same.” Frequently Asked Questions (FAQs), Fla. Legislature, [].

Florida legislators did not defend their actions by citing retributivist notions of justice or by arguing that restitution is a part of a person’s sentence because it serves to compensate the victim, as other scholars and activists have.140Retributivists argue that formerly incarcerated individuals should never be able to vote because they deserve to be punished and are less trustworthy than law-abiding individuals. See, e.g., Roger Clegg, George T. Conway III & Kenneth K. Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1, 17–18 (2008). Instead, legislators justified the bill as necessary for revenue collection and administrative convenience.141See Fla. S. Pro. Staff, supra note 139, at 2. These legislators argued that they needed to restrict the number of newly eligible voters to ensure that the Florida Department of State did not experience an “increased workload” from processing thousands of voter registration forms of formerly incarcerated individuals who had completed the terms of their sentences.142Id.

This restriction on re-enfranchisement in reality undermines the Florida Legislature’s purported goal of administrative convenience. As the Florida Legislature bill analysis indicates, limiting re-enfranchisement to those who have paid off their legal debt would require increased funding and lead to a “significant workload increase.”143Id. at 27. The Department of Corrections or another government agency would have to monitor who has paid off criminal court debt, notify individuals who have paid off criminal court debt of their eligibility to vote, and notify the Department of State when an individual becomes eligible to vote.144See id. A governmental agency would likely be tasked with monitoring the above eligibility cut-offs. Yet, as discussed above, neither the Florida statute nor the state itself has created a system for tracking who has paid off their debts and who is eligible to vote. See Love & Schlussel, supra note 8. Thus, the Department of State’s responsibilities would simply be passed along to the Department of Corrections or another governmental agency. This contradicts the rationale for the restriction and fails even the lowest level of constitutional review. The restriction is clearly not rationally related to a legitimate government interest, as applied to individuals who are genuinely unable to pay. Yet despite the blatant irrationality of this statute, the Eleventh Circuit en banc upheld it as constitutional.145Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020). Due to the current conservative majority of the U.S. Supreme Court, it is unlikely that this decision by the Eleventh Circuit will be overturned if a petition for certiorari is filed.

2. Statutory Reform: Washington State

Many state legislatures have attempted to eliminate wealth-based criminal disenfranchisement by amending their statutes or constitutions, as discussed in this Section.146See, e.g., Fla. Const. art. VI, §4 (a)–(b) (amended 1992 and 2018). Yet these well-intentioned legislative actions have also had unintended consequences, as reforms in Washington State demonstrate. After the Supreme Court of Washington upheld a statute requiring payment of court debt before re-enfranchisement,147See Madison v. State, 163 P.3d 757, 773 (Wash. 2007) (holding that the disenfranchisement of felons who have satisfied the terms of their sentences but have not paid all legal financial obligations is constitutional under the Washington State Constitution). the state legislature removed the payment requirement.148See Wash. Rev. Code § 29A.08.520(1) (2020). But Washington’s reform did not re-enfranchise all eligible individuals. Instead, it only restored voting rights for individuals with in-state convictions who were determined to be genuinely unable to pay.149See generally Nicolas L. Martinez, Debt to Society? The Washington State Legislature’s Efforts to Restore Voting Rights to Persons with Felony Convictions, 22 Stan. L. & Pol’y Rev. 329 (2011) (exploring whether the Washington state legislature actually re-enfranchised voters with the Voting Rights Restoration Act). As a result, the state requires conducting an ability-to-pay determination before an individual is eligible for re-enfranchisement.150Washington defines a person’s ability to pay as whether a person “has willfully failed to comply with the terms of his or her order to pay legal financial obligations.” Wash. Rev. Code § 29A.08.520(2)(a) (2020). If the decision-maker in an ability-to-pay hearing determines, correctly or incorrectly, that the individual is able to pay their fines and fees, that individual will remain disenfranchised until they have paid.151Id. As discussed in Part III of this Note, ability-to-pay determinations are extremely problematic for several reasons, predominately because of their discretionary nature. Thus, this reform does not completely eliminate wealth-based criminal disenfranchisement or even protect vulnerable individuals from being forced to hold debt they cannot afford to pay.

In addition, Washington’s statute has an additional mechanism for collecting fees from formerly incarcerated individuals. At the discretion of a judge, an individual may have to pay supervision fees once released from confinement as a condition of parole or probation.152Wash. Rev. Code § 9.94A.703(2)(d) (2020). Unless this requirement is waived, an individual who is assessed supervision fees cannot regain their voting rights until these fees are paid.153§ 29A.08.520(2)(a).

Even though Washington intended to remove financial barriers to re-enfranchisement for low-income individuals,154Martinez, supra note 149, at 333–34 (discussing the original intent of Washington H.B. 1517 and the resulting compromise bill that disenfranchises individuals unless they are genuinely unable to pay). discretionary measures within its statutory structure, such as ability-to-pay determinations, may in practice require impoverished individuals to pay court debt before being re-enfranchised.155Cf. Del. Code Ann. tit. 15, §§ 6101–07 (2021); Del. Code Ann. tit. 11, § 4104(a)(3) (2021). Delaware’s approach is similar to Washington’s. Delaware has statutorily eliminated the requirement that formerly incarcerated individuals pay court debt for re-enfranchisement, but it has a mandatory payment requirement as a condition of parole and probation, which effectively prohibits individuals from voting until they have paid all debts. Currently, the Washington State Senate is contemplating restoring voting rights for in-state convictions once these individuals are released from incarceration, which would permanently waive the payment requirement for individuals released from parole or probation.156News Trib., State Senate Democrats Advance Bill to Restore Washington Felons’ Voting Rights Faster, Seattle Times (Jan. 26, 2020), []. Although this bill would be a significant improvement, it does not completely remove all discretion associated with legal debt.157Further, the bill has been stalled in the Washington State Senate. See Gene Johnson, Momentum Builds for Letting People Vote on Parole, ABC News (Dec. 11, 2020, 2:18 PM), []. Until Washington changes its ability-to-pay determinations, low-income individuals may continue to be disenfranchised because of their poverty.

3. Other Categories of Statutory Reform: Condition of Clemency or Pardon, Governor Discretion, and Automatic Re-Enfranchisement

Other states have implemented statutory reforms to improve their re-enfranchisement policies.158E.g., Ohio Rev. Code Ann. § 2961.01 (West 2021); Idaho Code § 18-310 (2021); Idaho Code § 50.01.01(b)(v) (2021). Yet these reforms also have not completely eliminated wealth-based criminal disenfranchisement. In Ohio, an individual is re-enfranchised when they are granted parole, judicial release, or a conditional pardon.159Ohio Rev. Code Ann. § 2961.01 (West 2021). But if they seek clemency, they must pay all fines and fees before their application can be considered.160See Ohio Dep’t of Rehab. & Corr., Policy 105-PBD-05, Clemency Procedures: Non-Death Penalty Cases 3 (July 17, 2017), []. Similarly, in Idaho, an individual is re-enfranchised after “final discharge,” but if they would like to apply for a pardon, they must send proof that all of their fines and fees and restitution payments have been paid.161See Idaho Code § 18-310 (2021); Idaho Code § 50.01.01(b)(v) (2021).

Two states, New York and Virginia, have implemented reforms in a different way: through executive order.162The governors of New York and Virginia are authorized to implement these executive orders by state statute and state constitution, respectively. See N.Y. Elec. Law § 5-106(2) (LexisNexis 2021); Va. Const. art. II, § 1. The New York State Senate recently passed a bill that would automatically restore voting rights to all individuals who are released from incarceration, and would thus repeal the governor’s authority to restore voting rights by executive order. S.B. 830B, 2021 State Assemb., Reg. Sess. (N.Y. 2021), []. Acting pursuant to their state statutory or constitutional authority, the governors of Virginia and New York have temporarily eliminated wealth-based criminal disenfranchisement by issuing executive orders restoring the voting rights of all individuals with criminal convictions, despite unpaid court debt.163See Voting Rights Restoration Efforts in New York, Brennan Ctr. for Just. (Apr. 2, 2019), []; see also Press Release, Governor Terry McAuliffe, Governor McAuliffe Announces New Reforms to Restoration of Rights Process (June 23, 2015), []. Although this is a step in the right direction, these actions are only temporary. A new administration could rescind these executive orders at any moment, and thus restore wealth-based criminal disenfranchisement. Therefore, these reforms fail to completely eliminate wealth-based criminal disenfranchisement.

III. Abolishing Wealth-Based Criminal Disenfranchisement

The Supreme Court has held that a state cannot “[punish] a person for his poverty.”164Bearden v. Georgia, 461 U.S. 660, 671 (1983). Yet, the vast majority of states do just that: by denying the vote to formerly incarcerated individuals who cannot afford to pay, states punish these individuals because of their poverty. Other countries have started to distance themselves from the practice of criminal disenfranchisement and now subject it to heightened judicial review.165See Reuven Ziegler, Legal Outlier, Again – U.S. Felon Suffrage: Comparative and International Human Rights Perspectives, 29 B.U. Int’l L.J. 197, 199 (2011).

As described in Part I, legislators have stated that fines and fees serve to (1) punish criminals, (2) compensate victims, and (3) generate revenue. In addition, partisanship also drives policymakers to implement legal financial obligations.166See supra Part I. Yet, state legislators have refused to admit that partisanship or racial bias influences the enactment of these statutes. Instead, they put forth other justifications for these statutes, such as revenue collection or administrative convenience, neither of which are rationally related to voting or can be accomplished in ways that do not disenfranchise low-income individuals.167See Fla. S. Pro. Staff, supra note 139, at 29.

Recent litigation in Florida has brought the negative implications of wealth-based criminal disenfranchisement into the public eye, resulting in increased calls for its elimination.168David Litt, Before Telling Protestors for George Floyd to Vote, Remember Not All of Them Are Allowed To, NBC News (June 4, 2020), []. The majority of individuals support the notion that civil liberties should prevail over punitive notions of punishment,169See Jeff Manza, Clem Brooks & Christopher Uggen, Public Attitudes Toward Felon Disenfranchisement in the United States, 68 Pub. Op. Q. 275, 276–77, 283 (2004). and 91% of Americans “consider the right to vote as essential to their own personal sense of freedom.”170Pew Rsch. Ctr., Public Supports Aim of Making It ‘Easy’ for All Citizens to Vote 1 (2017), []. Further, the movement for reform has gained support from not only liberals, academics, and policy organizations,171See, e.g., Ala. Appleseed Ctr. for L. & Just., Under Pressure: How Fines and Fees Hurt People, Undermine Public Safety, and Drive Alabama’s Racial Divide 41 (2018), []; see also Allyson Fredericksen & Linnea Lassiter, All. for a Just Soc’y, Disenfranchised by Debt: Millions Impoverished by Prison, Blocked from Voting 19 (2016), []. but also conservative organizations like the Cato Institute.172Brief for the Cato Institute as Amicus Curiae at 2, Jones v. DeSantis, 410 F. Supp. 3d 1284 (N.D. Fla. 2019) (No. 19-cv-00300). As the failed litigation in Florida demonstrates, however, legal challenges will likely continue to be ineffective at eliminating this practice.

Other proposed reforms involve structural changes to ability-to-pay determinations to ensure that individual biases are removed from these processes.173See, e.g., Colgan, supra note 16, at 139 (proposing structural reforms to ability-to-pay determinations); Meghan M. O’Neil & J.J. Prescott, Targeting Poverty in the Courts: Improving the Measurement of Ability to Pay, 82 L. & Contemp. Probs. 199, 200 (2019) (proposing online ability-to-pay assessments to streamline and standardize ability-to-pay determinations). Yet these reforms are also inadequate. If a state has a biased or subjective process for conducting ability-to-pay determinations, as discussed below, an otherwise eligible individual may still be denied the right to vote. Even assuming these biases could be removed, procedural and other obstacles associated with ability-to-pay determinations still remain, as discussed below.

As a result, more comprehensive reform is needed to address the devastating impact that wealth-based criminal disenfranchisement has on low-income individuals. If each state abolished wealth-based criminal disenfranchisement, formerly incarcerated individuals would never be denied the right to vote because of their poverty. This Part discusses the inadequacy of existing reform proposals and ultimately propose that states abolish the practice of wealth-based criminal disenfranchisement.

A. The Inadequacy of Ability-to-Pay Determinations

Many scholars have proposed reforming the ability-to-pay determination process by standardizing and streamlining ability-to-pay hearings to ensure no individual is disenfranchised because of their inability to pay.174See, e.g., Colgan, supra note 16, at 139; O’Neil & Prescott, supra note 173, at 200. Even with these reforms, ability-to-pay determinations are still flawed in multiple ways. For example, if a judge in an ability-to-pay hearing determines that an individual is able to pay when, in fact, they are not, this could result in a denial of that person’s fundamental right to vote. Thus, discretionary determinations should not be used when determining who is eligible to vote if there is any chance of error.

Many states require individuals to pay court fines and fees before re-enfranchisement.175See Can’t Pay, Can’t Vote, supra note 5, at 21. Scholars have noted many issues with ability-to-pay hearings associated with these requirements.176See, e.g., Theresa Zhen, (Color)blind Reform: How Ability-to-Pay Determinations Are Inadequate to Transform a Racialized System of Penal Debt, 43 N.Y.U. Rev. L. & Soc. Change 175 (2019); Mary Fainsod Katzenstein & Mitali Nagrecha, A New Punishment Regime, 10 Criminology & Pub. Pol’y 555, 564 (2011). Ability-to-pay hearings give judges large amounts of discretion, which perpetuates racial biases.177See Harris, supra note 31, at 26. Additionally, it is notoriously difficult to determine whether a person is able to pay. Decisionmakers must examine an individual’s past and present financial history, as well as predict their future financial status.178See Zhen, supra note 176, at 201 (noting the conspicuous absence of “multi-generational layers of exploitation, financial insecurity, and state-sanctioned wealth stripping” from ability-to-pay determinations). One study notes:

Nothing is “simple” in assessing an individual’s ability to pay. Relying on legislative, judicial, or administrative efforts to determine an individual’s financial status or capacity is fraught with complications. To gain an accurate picture of the income position of an individual, whose work record is irregular at best, is constantly changing, and has financial obligations that might extend across multiple institutional arenas (child support, restitution, court, and state obligations in addition to informal or formal loans taken from family and friends) only can be beset by inaccuracies.179Katzenstein & Nagrecha, supra note 176, at 564.

Further, determining whether someone can pay involves a “moral determination about what people should be expected to pay, given their resources.”180Sandra G. Mayson, Detention by Any Other Name, 69 Duke L.J. 1643, 1668 (2020). Officials frequently make this moral determination without considering the specific circumstances individuals in poverty face.181Id. Hinging someone’s fundamental right to vote on these uninformed decisions can create unfair outcomes that disproportionately impact racial and ethnic minorities.182See generally Zhen, supra note 176 (arguing that ability-to-pay determinations can worsen the “racial economic divide”).

Although scholars have proposed promising reforms to standardize ability-to-pay determinations and eliminate biases,183See, e.g., Colgan, supra note 16, at 140 (proposing structural reforms to ability-to-pay determinations to standardize them and eliminate disparate outcomes); O’Neil & Prescott, supra note 173. these reforms do not completely eliminate the practice of wealth-based criminal disenfranchisement. For example, proposed automated and computerized proceedings, which attempt to standardize and make court proceedings more efficient, have accuracy and legitimacy barriers.184In addition, these studies were based on small sample sizes. See O’Neil & Prescott, supra note 173, at 221. In addition, other issues arise when these automated tools are used, such as privacy concerns, the use of racially biased data, and a lack of data supporting their reliability.185See Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward a Demosprudence of Poverty, 69 Duke L.J. 1473, 1489–90 (2020). Further, scholars argue that the best substantive outcomes for impoverished individuals should determine whether we use these new technological reforms, not how user-friendly these automated programs are.186See, e.g., id. at 1521; Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (1st ed. 2017). These reforms are promising, but they still may result in inaccurate ability-to-pay determinations, and thus disenfranchise individuals because of their poverty.

However, even if ability-to-pay hearings could be reformed, other issues still remain. For example, an indigent individual must not only be aware of and raise an inability-to-pay defense, but they also must navigate procedural obstacles, which can be more difficult when proceeding pro se.187See Can’t Pay, Can’t Vote, supra note 5, at 31. These procedures may also be more costly than the fines and fees themselves.188See Zhen, supra note 176, at 202–03. While some jurisdictions only require individuals to swear under oath that they are unable to pay,189E.g., Va. Code Ann. § 19.2-355 (2021); Or. Rev. Stat. § 135.050(1) (2019). others require extensive financial documentation that can be difficult to produce for seasonal or non-traditional workers.190See Zhen, supra note 176, at 203. In addition, individuals may not be able to get an ability-to-pay hearing due to docket backlog and other local administrative issues.191See PFM’s Ctr. for Just. & Safety Fin., Reducing Reliance on Criminal Fines and Fees 6 (2020), []. Even if they get a hearing, they may be forced to incur other expenses to appear in court, such as unpaid time off from work, transportation costs, child care costs, and other expenses.192See id. Thus, even if ability-to-pay determinations are reformed, other barriers may prevent individuals from effectively raising an inability-to-pay defense, resulting in further disenfranchisement.

B. Abolish Wealth-Based Criminal Disenfranchisement

There are several ways to eliminate wealth-based criminal disenfranchisement: (1) state legislators could abolish it; (2) states could adopt far-reaching reforms like those in either Colorado and Nevada, or in Maine and Vermont, as discussed below; or (3) states could adopt temporary measures to eliminate wealth-based criminal disenfranchisement while permanent reforms are being implemented. Due to questions regarding the feasibility of reforms in Colorado and Nevada and the far-reaching scope of reforms in Maine and Vermont, this Note recommends that states affirmatively abolish wealth-based criminal disenfranchisement.

1. Abolition Through Affirmative State Legislation

The first way states could eliminate wealth-based criminal disenfranchisement is by affirmatively abolishing it through state legislation or state constitutional amendments. State abolition of wealth-based criminal disenfranchisement can take multiple forms depending on the existing legal structure of disenfranchisement. For example, a state that statutorily restricts voting rights because of failure to pay court debts must implement this reform legislatively. Conversely, a state with a state constitutional provision or a state constitutional amendment limiting voting rights must implement this reform by passing a constitutional amendment.193See, e.g., Ark. Const. amend. LI, § 11(d)(2)(A)-(D).

State statutory reforms and constitutional amendments could take many forms to affirmatively abolish wealth-based criminal disenfranchisement. Yet above all, legislators must draft them carefully to avoid the outcome in Florida. Appropriate language may include: “No individual may be disenfranchised or prohibited from re-gaining the right to vote because of unpaid court debt or other legal financial obligations.” Or, if a state currently re-enfranchises individuals once they are released from incarceration, legislators could qualify this by stating: “No financial restrictions, including unpaid legal financial obligations, shall prohibit an individual from being re-enfranchised.” In addition, states must ensure that phrases like “terms of sentence,” “court debt,” or “legal financial obligations,” are clearly defined to avoid loopholes like those in Florida’s Amendment 4.

For example, Florida’s state legislature could repeal the statute interpreting Amendment 4, or Floridians could pass an additional referendum clarifying the definition of “terms of sentence” to not include payment of any legal financial obligations, such as fines, fees, restitution, and other debts incurred from an individual’s interaction with the criminal justice system.194In the meantime, individual municipalities or state court administrators could take small steps to help identify the amount of legal financial obligations owed by individuals. For example, local entities could improve their reporting processes and streamline data production to alleviate the statutory burden imposed on the state. As a result, the phrase “terms of sentence” would only include an individual’s period of incarceration in a jail or prison.

Although it is easier to pass legislative reforms at the state level, state legislators may face the same legislative gridlock195For example, in 2019, Iowa Senate Republicans killed a bill which would have amended the Iowa Constitution to automatically restore voting rights to felons once they have completed the terms of their sentences. See Dan Hendrickson, Iowa Senate Republicans Kill Felon Voting Rights Constitutional Amendment Bill, Who13 (Apr. 4, 2019, 3:11 PM), []. After Senate Republicans killed this proposal again in 2020, Iowa Governor Kim Reynolds signed an executive order implementing the reform. See Press Release, Off. of the Governor of Iowa, Gov. Reynolds Signs Executive Order to Restore Voting Rights of Felons Who Have Completed Their Sentence (Aug. 4, 2020), []. that federal officials do.196See Haag, supra note 95. Advocates have been working to reform wealth-based criminal disenfranchisement for decades and have seen progress and changes in public opinion.197See Tierra Bradford, Common Cause Educ. Fund, Zero Disenfranchisement: The Movement to Restore Voting Rights 10 (2019), []. Yet some conservatives remain resistant.198See Clegg et al., supra, note 140. To build the requisite momentum for this movement to succeed, formerly incarcerated individuals and impacted communities should lead the fight. With their expertise and connection to this issue, formerly incarcerated individuals could effectively lobby policymakers and further sway public opinion.199See Bradford, supra note 197, at 12.

2. Abolition Through Existing State Reforms

The second way states could eliminate wealth-based criminal disenfranchisement is by enacting reforms similar to those adopted in either Maine and Vermont, or instead reforms in Colorado and Nevada. Maine and Vermont are the only states that completely prohibit criminal disenfranchisement, regardless of whether a person is or was incarcerated.200See Me. Stat. tit. 21-A, § 112(14) (2021); Vt. Stat. Ann. tit. 28, § 807(a) (2021); Colgan, supra, note 16 at 146; Meg Cunningham, New Jersey Gov. Phil Murphy Restores Voting Rights for 80,000 on Probation or Parole, ABC News (Dec. 18, 2019, 3:38 PM), [] Although Maine and Vermont accomplish this Note’s goal of eliminating wealth-based criminal disenfranchisement, their reform grants all formerly incarcerated individuals the right to vote, regardless of whether they are currently incarcerated or on parole, and may spark fierce political backlash.201See Clegg et al., supra note 140, at 17.

States like Colorado and Nevada have undertaken the most promising reform by automatically re-enfranchising all formerly incarcerated individuals upon release from confinement.202See Colo. Rev. Stat. § 1-2-103(4) (2021); Nev. Rev. Stat. § 213.157(2) (2021). However, the “serving a sentence” language in Colorado’s statute and the “release from prison” language in Nevada’s statute could be legislatively interpreted, as Florida’s “terms of sentence” language was, to require payment before re-enfranchisement.203See § 1-2-103(4); § 213.157(2) . Since Colorado’s and Nevada’s legislatures could alter their current laws to explicitly require payment, as Florida’s legislature did, the efficacy of these specific statutory reforms remains to be seen. Thus, despite their efforts, Colorado and Nevada have not completely eliminated this issue. If other states adopt Colorado’s and Nevada’s approaches, they will have to clearly define “terms of sentence” and similar phrases to eliminate ambiguity and avoid the same outcome as Florida.

3. Alternatives to Abolition

If state legislative gridlock prevents states from adopting this Note’s reform, states and localities could implement other, less effective reforms. These alternatives are only temporary fixes which do not fully accomplish this Note’s goal, but they are steps in the right direction.

First, local entities could limit judicial discretion over fines and fees. Some state statutes set quantitative limits on the amount of fines and fees that can be imposed, but allow judges to determine the exact amount,204E.g., Tenn. Code Ann. § 40-35-111 (2021); La. Stat. Ann. § 13:1381.4 (2020). while other states require fines and fees be imposed without judicial discretion.205See, e.g., N.Y. Crim. Proc. Law § 420.35 (LexisNexis 2021). By encouraging judges to use their discretion to limit the amount of fines and fees that must be paid before an individual can be re-enfranchised, local politicians, advocacy organizations, and constituents could counteract the negative effects of wealth-based criminal disenfranchisement. In addition, municipalities could adopt expedited hearings, known as “rocket dockets.”206See David Smiley & Charles Rabin, Felons Unable to Pay Fines, Fees Can Vote in Miami Under This First-of-Its-Kind Plan, Mia. Herald (July 30, 2019, 9:52 AM), []. For example, Miami-Dade County adopted a process that allows judges to set aside financial penalties that prevent individuals from voting either completely or by converting the financial penalties to community service hours.207See id.

Second, if a state’s statute or constitution permits state governors to sign executive orders regulating voting eligibility, the state could implement temporary reforms like those adopted by New York and Virginia.208See N.Y. Elec. Law § 5-106(2) (LexisNexis 2021); Va. Const. art. II, § 1; S.B. S830B, 2021-2022 Legis. Sess. (N.Y. 2021). As discussed above, these executive orders effectively remove the requirement that all legal financial obligations be paid in order to register and vote. These executive orders are temporary. A new governor could rescind them once in office. Thus, this is a temporary solution that could be used as a placeholder until legislative reforms are adopted.

As a last-ditch effort, local organizations could organize campaigns to raise funds to help formerly incarcerated individuals pay off their fines and fees. For example, local organizations such as Free Hearts in Tennessee and the Florida Rights Restoration Coalition (FRCC) in Florida have organized funds to help disenfranchised individuals pay off their debts.209In Florida, these fundraising efforts gained national attention after Michael Bloomberg, LeBron James, and others contributed millions to this fund. See Lawrence Mower & Langston Taylor, Celebrities Spent Millions so Florida Felons Could Vote. Will It Make a Difference?, Electionland from Propublica (Nov. 2, 2020, 6:00 AM), []; Nashville Fund Pays Fines and Fees Needed to Restore Voting Rights for the Disenfranchised, Tenn. Trib. (Oct. 2, 2020), []. These organizations turned to fundraising as a last resort. The FRCC has been working for years to implement reforms in Florida and successfully advocated for the adoption of Amendment 4. After the U.S. Supreme Court refused to lift the Eleventh Circuit’s order blocking these individuals from registering to vote or voting,210See Nina Totenberg, Supreme Court Deals Major Blow to Felons’ Right to Vote in Florida, NPR (July 17, 2020, 5:00 AM), []. the FRRC decided to start a fundraiser to make sure these individuals could vote in the 2020 election. Although the three options above do not fully eliminate wealth-based criminal disenfranchisement, they are temporary measures that could be adopted while statewide reforms are implemented.

C. Withstanding Opposition

Critics may claim that abolishing wealth-based criminal disenfranchisement is drastic and unpopular,211See Clegg et al., supra, note 140, at 17–18 (noting that some people argue that formerly incarcerated individuals should never be allowed to vote because they deserve punishment and are less trustworthy than law-abiding individuals). but support for this position is growing.212See, e.g., Neil L. Sobol, Griffin v. Illinois: Justice Independent of Wealth?, 49 Stetson L. Rev. 399, 427 (2020). Multiple policy organizations recommend that, until criminal disenfranchisement can be prohibited, states should eliminate wealth-based criminal disenfranchisement, which further demonstrates the moderate nature of this Note’s reform.213See Ala. Appleseed Ctr. for L. & Just., supra note 171, at 41; Fredericksen & Lassiter, supra note 171, at 19. Additionally, even though they have the affirmative authority to do so,214See Richardson v. Ramirez, 418 U.S. 24, 54 (1973) (citing U.S. Const. amend. XIV). states are not required to disenfranchise formerly incarcerated individuals under the Fourteenth Amendment. As a result, disenfranchising formerly incarcerated individuals is the drastic approach, not re-enfranchising them.

Critics may also argue that this reform grants formerly incarcerated individuals the right to vote, which may face intense opposition.215See Clegg et al., supra note 140. But this Note’s reform does not force states to re-enfranchise all formerly incarcerated individuals. Unlike Colorado’s and Nevada’s recent reforms, which require re-enfranchisement when individuals are released from confinement, this Note’s reform would only require states to re-enfranchise individuals because of unpaid court debt according to existing law. Accordingly, this Note’s reform allows states to choose whether and when to completely re-enfranchise formerly incarcerated individuals. Depending on the state’s statute or constitution, individuals could be re-enfranchised when they are released from confinement, once they have completed all other parole or probation requirements, or a certain number of years after they have been released. Thus, this Note’s reform merely prevents states from disenfranchising formerly incarcerated individuals beyond their statutory or constitutional limits because of unpaid court debt.

This Note’s reform would simply mitigate the effects of poverty on disenfranchisement. As a result, this reform is not nearly as polarizing as criminal re-enfranchisement generally.216See, e.g., id. at 17. Since this Note’s reform avoids the highly politicized question of whether to completely re-enfranchise formerly incarcerated individuals upon release, it is a less extreme version than Colorado’s or Nevada’s reform. In addition, this Note’s reform also gives states the option of re-enfranchising these individuals according to their existing statutory and constitutional structures.

Due to political pressure and the rising popularity of electoral reform, states should be willing to implement reforms like the one proposed by this Note to provide greater access to elections and to ensure electoral legitimacy.217See Taylor Walker, Voting After Prison: The Movement in CA and Beyond to End Voter Disenfranchisement, Witness LA (Jan. 10, 2020), []. Currently, this political pressure may not be strong enough to effect change in conservative states, but it is clearly growing, as evidenced by pushback in Florida against state legislative reforms and support for wealth-based criminal disenfranchisement from conservative organizations.218See Brief for the Cato Institute as Amicus Curiae, supra note 172, at 2.

This Note recognizes that abolishing wealth-based criminal disenfranchisement will re-enfranchise both individuals who are not able to pay as well as those who are able to pay. This is a natural consequence of this reform and must be accepted to ensure that all individuals who are genuinely unable to pay are not disenfranchised due to their poverty. Although critics may argue that re-enfranchising individuals who are able to pay their legal financial obligations will eliminate their incentive to pay, many formerly incarcerated individuals cannot afford to pay their debts in the first place. Consequently, continued disenfranchisement is not a realistic motivator for people to pay.219Policy organizations have argued that coercing payment through threats and other means is futile. The Fines & Fees Justice Center made this argument in situations where cars are impounded to coerce payment of traffic fines and fees: “If people can’t afford to pay a parking ticket, how can they possibly afford a 4 impound fee?” See COVID-19 Fines & Fees Policy Tracker, Fines & Fees Just. Ctr., [] (last visited May 31, 2021). Further, fines and fees are not an effective source of revenue because many individuals cannot afford to pay them.220The Brennan Center concluded that “fees and fines are an inefficient source of government revenue.” Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen & Noah Atchinson, Brennan Ctr. for Just., The Steep Costs of Criminal Justice Fees and Fines 5 (2019), []. In addition, many states have difficulties collecting debts owed. For example, “Florida, New Mexico, and Texas amassed a total of almost .9 billion in uncollected debt.” Id. at 10. Thus, governmental revenues will not be depleted if this reform is implemented. In addition, imposing other penalties, such as suspending drivers licenses or imposing additional debt, will similarly fail to secure payment, since these penalties will impair an individual’s ability to go to work and pay off already-accrued debts.

Finally, abolishing wealth-based criminal disenfranchisement would actually benefit states. The administrative burden placed on state election administration officials would be reduced. For example, states would not have to track whether an individual has paid off their legal debt before allowing them to register to vote.221See Love & Schlussel, supra note 8, at 1–2 (exemplifying Florida’s inability to develop a system to track payment of legal financial obligations, even after months of litigation on this subject). States would, in reality, save tax dollars by reducing administrative labor costs.222Jennifer L. Selin, The Best Laid Plans: How Administrative Burden Complicates Voting Rights Restoration Law and Policy, 84 Mo. L. Rev. 999, 1023–29 (2019) (explaining how Florida’s Amendment 4 actually increased the administrative burden on Florida’s administrative officials by requiring them to create a system to keep track of legal financial obligation payments, coordinate between governmental departments, train government administrators, increase budgets to accommodate these changes, and provide information to citizens). As such, states have additional administrative incentives to abolish wealth-based criminal disenfranchisement, aside from equity and other concerns raised by this Note, and states should take action to eliminate it.


Since federal reforms are not currently practical due to congressional gridlock, state-level reforms are the only way to completely eliminate wealth-based criminal disenfranchisement. Wealth-based criminal disenfranchisement takes a fundamental right away from individuals and “punish[es] a person for his poverty” in violation of the U.S. Constitution.223Bearden v. Georgia, 461 U.S. 660, 671 (1983). Since reforms to date have failed to eliminate this unconstitutional practice, states must affirmatively abolish wealth-based criminal disenfranchisement. Abolition of wealth-based criminal disenfranchisement is necessary to prohibit the punishment of poverty and to ensure that formerly incarcerated individuals are able to exercise their fundamental right to vote without impediment.

* J.D. 2021, University of Michigan Law School. Thank you to the JLR editing team and the JLR Symposium office for their help and thoughtful edits. Special thanks to my family for their love and constant support.