On October 18, in the case of Jones v. Latimer, a federal court unanimously rejected claims that Florida’s new felon voting laws discriminate against women in violation of the 19th Amendment of the U.S. Constitution. Two formerly incarcerated women claimed Florida violated the Constitution by requiring that they complete their sentences and pay their court costs before having their voting rights restored. The U.S. Court of Appeals for the 11th Circuit reiterated that plaintiffs seeking to prove violations of the 19th Amendment must show an intent to discriminate in order to prevail, something that the women in this case were unable to do. In Latimer, the plaintiffs challenged Florida state constitutional Amendment 4 and its implementing law SB 7066. Amendment 4, which newly enfranchised rehabilitated felons, was supported by a supermajority of Florida voters. But activist lawyers wanted unelected judges to rewrite the law to remove the requirement to pay legal fees before restoring the voting rights of felons.
The sole basis of the lawsuit was “disparate impact,” an ivory tower theory of discrimination which posits that any statistical disparity in outcome is per se discriminatory. What’s absent from such a theory is any showing of intent — that those who made a change in the law did so for the purpose of disenfranchising or harming that group.
Latimer was not the first unsuccessful attempt to use the courts to change Amendment 4 and SB 7066. In 2018, the League of Women Voters of Florida and other groups first challenged these laws in Jones v. DeSantis. In DeSantis, a U.S. District Court found no proof of intent to discriminate against women:
Here there is nothing more [than a raw statistical disparity]— no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.
Ironically, the lawyers in DeSantis even failed to prove their own theory of disparate impact. The court found that, in fact, women were less likely to be negatively impacted by the law than men:
[T]he pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons.
The 11th Circuit rejected this first attempt to strike down Florida’s voting laws, explaining the Floridians had reasonable arguments for how the voting law was written:
The people of 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…. It is instead Florida’s legitimate interest in restoring to the electorate only fully rehabilitated felons who have satisfied the demands of justice.
The lawyers appealed DeSantis all the way to the U.S. Supreme Court, which declined the case.
To attempt a second bite at the apple, activist lawyers filed the Latimer case, adding new statistical games. This time, time lawyers used another leftist theory — intersectionalism, which cobbles together characteristics of multiple groups to show discrimination. This time they claimed that the law discriminates against “low-income women of color” as compared to their “white female counterparts.”
The case is a prime example of how the left uses its ivory tower theories of disparate impact and intersectionalism to undermine commonsense, democratically enacted reforms. Courts should continue to reject partisan efforts to rewrite election law by cherry-picking statistics.