Rosemary McCoy, et al. v. Governor of Florida, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12304
Non-Argument Calendar
____________________
KEVIN LEON JONES, et al.,
Plaintiffs,
ROSEMARY MCCOY,
SHEILA SINGLETON,
Plaintiffs-Appellants,
versus
GOVERNOR OF FLORIDA,
CRAIG LATIMER,
in his Official Capacity as Supervisor of Elections of
Hillsborough County Florida an Indispensible Party,
SECRETARY, STATE OF FLORIDA,
KIM A. BARTON,
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2 Opinion of the Court 20-12304
in her Official Capacity as Supervisor of Elections
for Alachua County,
PETER ANTONACCI,
in his Official Capacity as Supervisor of Elections
for Broward County, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:19-cv-00300-RH-MJF
____________________
Before J ORDAN, J ILL PRYOR , and TJOFLAT, Circuit Judges.
JILL PRYOR, Circuit Judge:
In 2018, a supermajority of voters in Florida enacted a state
constitutional amendment that would permit most people with
felony convictions to vote “upon completion of all terms of sen-
tence including parole or probation.”
See Fla. Const. art. VI § 4(a),
(b) (“Amendment 4”). The Florida legislature then passed a law
stating that Amendment 4 required a person to satisfy all legal fi-
nancial obligations, or LFOs, before she would be permitted to
vote. Fla. Stat. § 98.0751;
see Advisory Op. to the Governor re:
Implementation of Amendment 4, The Voting Restoration
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20-12304 Opinion of the Court 3
Amendment, 288 So. 3d 1070, 1072 (Fla. 2020) (ruling that
Amendment 4’s “all terms of sentence” included LFOs).
Rosemary McCoy and Sheila Singleton, along with many
others, filed suit to challenge the LFO requirement. The plaintiffs,
whose cases were consolidated in the district court, levied several
constitutional and statutory challenges against the requirement.
McCoy and Singleton, as relevant to this appeal, asserted that the
LFO requirement violated the Equal Protection Clause of the
Fourteenth Amendment and the Nineteenth Amendment to the
United States Constitution insofar as the requirement applied to
“low-income women of color who face unemployment, low
wages, and difficulty paying off their financial debts at much
higher rates than their male and white female counterparts.” Ap-
pellants’ Br. at 5. After a bench trial, the district court rejected
these gender discrimination-based claims. The court explained
that McCoy and Singleton could prevail on their constitutional
challenges only if they could “show that gender was a motivating
factor in the adoption of the pay-to-vote system,” and they had
presented at trial no evidence of intentional discrimination.
Jones
v. DeSantis, 462 F. Supp. 3d 1196, 1239 (N.D. Fla. 2020). McCoy
and Singleton have appealed.1
1 McCoy and Singleton prevailed at trial on another of their claims: that the
LFO requirement constituted wealth discrimination in violation of the Equal
Protection Clause.
See Jones v. Governor of Florida, 975 F.3d 1016, 1027–28
(11th Cir. 2020) (en banc). Thus, they are cross-appellants in this case. The
Florida defendants appealed the district court’s judgment as to the wealth
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4 Opinion of the Court 20-12304
McCoy’s and Singleton’s arguments on appeal are legal in
nature. They do not argue that if proof of discriminatory intent is
required, they have satisfied that requirement. Because both
claims may succeed only upon proof of discriminatory intent, we
discrimination claim, and this Court, sitting en banc, reversed the district
court.
See id. at 1025. All parties in this case agree, and we agree with them,
that the fact that McCoy and Singleton prevailed initially on their wealth dis-
crimination claim does not deprive them of standing to cross-appeal the dis-
trict court’s adverse final judgment on their gender discrimination claims.
Florida makes a different argument as to why McCoy and Singleton
lack standing to pursue this appeal. Florida argues that McCoy and Singleton
“purport to challenge [the statutory] requirement that felons satisfy financial
obligations, but they make no mention of challenging Amendment 4, which
imposes the same requirement.” Appellees’ Br. at 14. Thus, the State says,
McCoy and Singleton “cannot satisfy the redressability prong” of standing
because striking down the statutory requirement would leave intact
Amendment 4.
Id. at 15;
see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992) (explaining that, to have standing under Article III of the Constitution,
“it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision” (internal quotation marks omitted)). We
agree with the district court that the State “is simply wrong when it asserts
the plaintiffs do not challenge application of Amendment 4 . . . . The com-
plaints were filed before the Florida Supreme Court construed Amendment 4
to cover LFOs, so it is not surprising that the complaints focused on [the
statutory requirement].”
Jones, 462 F. Supp. 3d at 1214
. But “it has been clear
all along that the plaintiffs assert it is unconstitutional to condition voting on
payment of LFOs, especially those a person is unable to pay.”
Id. Thus, we
have no trouble concluding that McCoy and Singleton have challenged
Amendment 4.
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20-12304 Opinion of the Court 5
must reject McCoy’s and Singleton’s arguments and affirm the
judgment of the district court.2
I.
A plaintiff bringing a gender discrimination claim under the
Equal Protection Clause may prevail only upon proof of inten-
tional or purposeful discrimination.
See Pers. Adm’r of Mass. v.
Feeney, 442 U.S. 256, 274 (1979) (“[P]urposeful discrimination is
the condition that offends the Constitution.” (internal quotation
marks omitted)). “[P]roof of discriminatory intent or purpose is a
necessary prerequisite to any Equal Protection Clause claim. This
requirement applies with equal force to a case involving alleged
gender discrimination.”
Parks v. City of Warner Robins, 43 F.3d
609, 616 (11th Cir. 1995) (citations omitted).
Undeterred, McCoy and Singleton argue that because this
case implicates the fundamental right to vote, the
Anderson-
Burdick balancing test—rather than traditional equal protection
principles—applies.
See Anderson v. Celebrezze, 460 U.S. 780, 789
(1983);
Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under the
Anderson-Burdick test, courts “weigh the character and magni-
2 We review
de novo a district court’s conclusions of law.
AIG Centennial
Ins. Co. v. O’Neill, 782 F.3d 1296, 1308 (11th Cir. 2015).
Because we conclude that the district court correctly required evi-
dence of intent to discriminate, we do not address McCoy’s and Singleton’s
argument regarding disparate impact, that the district court erred in opining
that “the pay-to-vote requirement overall has a disparate impact on men, not
women.”
Jones, 462 F. Supp. 3d at 1240.
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6 Opinion of the Court 20-12304
tude of the asserted . . . injury against the state’s proffered justifi-
cations for the burdens imposed by the rule, taking into consider-
ation the extent to which those justifications require the burden
to plaintiffs’ rights.”
Democratic Exec. Comm. of Fla. v. Lee, 915
F.3d 1312, 1318 (11th Cir. 2019). Critically, plaintiffs advancing a
claim to which the test applies “need not demonstrate discrimina-
tory intent behind” the challenged provision.
Id.
We must reject this argument because McCoy and Single-
ton have not advanced the type of claim to which the
Anderson-
Burdick test applies. In
Lee, we distinguished between “a tradi-
tional Equal Protection Clause claim,” which “is cognizable in the
voting context if the plaintiff alleges that discriminatory animus
motivated the legislature to enact a voting law,” and a claim
brought under “the First and Fourteenth Amendments,” which
prompts application of the
Anderson-Burdick test.
Id. at 1318–19
& n.9. McCoy and Singleton indisputably brought a traditional
Equal Protection Clause claim. Their claim therefore falls outside
the scope of
Anderson-Burdick, and they must prove intentional
discrimination to establish the violation they alleged. Because
they have not attempted to prove intentional discrimination, their
Equal Protection Clause claim necessarily fails, and the district
court rightly rejected it.
McCoy and Singleton also argue that no intent require-
ment accompanies their claim because their challenge is as-
applied, rather than facial. In support, they cite a handful of prec-
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20-12304 Opinion of the Court 7
edential decisions. None of these decisions can bear the weight
the plaintiffs assign them.
First, McCoy and Singleton cite a line of cases from this
Court and the former Fifth Circuit addressing a provision in Ala-
bama’s constitution that disenfranchised people convicted of cer-
tain crimes. McCoy and Singleton assert these cases illustrate that
we have excepted as-applied equal protection challenges from the
general requirement that plaintiffs show intentional discrimina-
tion.
See Underwood v. Hunter (“
Underwood I”), 604 F.2d 367
(5th Cir. 1979)3;
Underwood v. Hunter (“
Underwood II”), 730
F.2d 614 (11th Cir. 1984),
aff’d sub nom.,
Hunter v. Underwood
(“
Underwood III”), 471 U.S. 222 (1985). We disagree with their
reading of these cases. The
Underwood plaintiffs challenged the
Alabama constitutional provision “as it applie[d] to those convict-
ed of crimes not punishable by imprisonment.”
Underwood II,
730 F.2d at 616. Among other causes of action, they pursued a
race discrimination claim in which they alleged that “the list of
offenses” resulting in disenfranchisement under the Alabama
Constitution “was specifically adopted with the intent” to disen-
franchise Black Alabamians “and in fact abridge[d] the right to
vote on the basis of race.”
Underwood I, 604 F.2d at 368. The
former Fifth Circuit reversed the district court’s dismissal of the
race discrimination claim, explaining that “[s]uch an allegation of
3 Decisions of the former Fifth Circuit rendered before close of business on
September 30, 1981 are binding on this Court.
See Bonner v. City of Prich-
ard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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8 Opinion of the Court 20-12304
both improper motive and discriminatory impact is in keeping
with language in recent Supreme Court cases to the effect that a
challenge to state action require[s] a disproportionate racial im-
pact
and a showing of discriminatory intent and purpose.”
Id. at
369 (emphasis added).
After a trial, the district court again ruled against the
Un-
derwood plaintiffs on their race discrimination claim, and we
again reversed, holding that the challenged provision of the Ala-
bama Constitution “denie[d] plaintiffs the right to vote on the ba-
sis of race.”
Underwood II, 730 F.2d at 616. We restated that “[a]
successful [F]ourteenth [A]mendment claim of race discrimina-
tion in matters affecting voting requires that plaintiffs establish an
intent to abridge the franchise on account of race.”
Id. at 617. We
concluded that the evidence demonstrated such intent,
see id. at
617–21, and the United States Supreme Court affirmed,
see Un-
derwood III, 471 U.S. at 233.
McCoy and Singleton argue that in
Underwood II we in-
cluded a “ruling” that the challenged provision’s “disproportion-
ate impact on Black voters” alone “supported striking” the provi-
sion. Reply Br. at 15. But their brief does not provide a citation to
any such ruling in the
Underwood cases, and we cannot find one.
Rather, these cases simply reiterate the proposition that discrimi-
natory intent and disproportionate impact, together, establish an
Equal Protection Clause violation. The
Underwood cases do not
support McCoy’s and Singleton’s position that an as-applied gen-
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20-12304 Opinion of the Court 9
der discrimination challenge under the Equal Protection Clause
can succeed absent a showing of discriminatory intent.
Nor does our decision in
United States v. Dallas County
Commission, 739 F.2d 1529 (11th Cir. 1984), aid McCoy’s and
Singleton’s argument that as-applied challenges require no show-
ing of intent. There, we addressed the United States government’s
Fourteenth Amendment challenge “to the at-large systems used
to elect the Dallas County . . . Commission and the Dallas County
Board of Education.”
Id. at 1532. The government challenged one
statutory provision, “the section under which the Board of Educa-
tion was elected, only as applied and not on its face,” so the dis-
trict court prohibited the government from “present[ing] evi-
dence of discriminatory intent in the enactment of” the provision.
Id. at 1532–33 (footnote omitted). McCoy and Singleton seize on
the district court’s action as evidence that as-applied challenges do
not require a showing of discriminatory intent, but they overlook
the nuances of
Dallas County. The government in that case was
challenging the at-large method Dallas County
actually used to
elect its Commission and Board, not the at-large method as it was
set out in the statute.
See id. at 1532 n.1 (“Although the [Board] is
elected pursuant to the same statute that sets forth the election
provisions for other county boards of education throughout Ala-
bama, this lawsuit challenges only the election structure in Dallas
County, Alabama.”). Naturally, then, the government was prohib-
ited from introducing evidence of discriminatory intent in the
passage of the statute: it was the scheme at the local level that al-
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10 Opinion of the Court 20-12304
legedly was discriminatory, not the system provided in the stat-
ute.
The equal protection gender discrimination claim McCoy
and Singleton advanced can be sustained only upon a showing of
discriminatory intent. Because McCoy and Singleton did not at-
tempt to make this showing, their Equal Protection Clause claim
fails, and the district court was correct to reject it.
II.
Discriminatory intent also is an essential element of
McCoy’s and Singleton’s claim under the Nineteenth Amend-
ment. The Supreme Court has said that the Nineteenth Amend-
ment, which prohibits denial of the right to vote “on account of
sex,” U.S. Const. amend. XIX, “is in character and phraseology
precisely similar to the Fifteenth,”
Leser v. Garnett, 258 U.S. 130,
136 (1922), which prohibits denial of the franchise “on account of
race,” U.S. Const. amend. XV.
See also Jones v. Governor of Flor-
ida, 975 F.3d 1016, 1043 (11th Cir. 2020) (en banc) (“[T]he Nine-
teenth Amendment operates just like the Fifteenth Amend-
ment.”). Although there are few Nineteenth Amendment deci-
sions, Fifteenth Amendment jurisprudence is slightly more ro-
bust. Because of the “precise[] similar[ity]” between the two
amendments, our inquiry starts, and ends, with that jurispru-
dence.
Leser, 258 U.S. at 136.
Decades ago, a plurality of the Supreme Court noted that
none of its decisions had ever “questioned the necessity of show-
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20-12304 Opinion of the Court 11
ing purposeful discrimination in order to show a Fifteenth
Amendment violation.”
City of Mobile v. Bolden, 446 U.S. 55, 63
(1980) (plurality opinion). Although it has never squarely ad-
dressed the appropriateness of the intent requirement, the Su-
preme Court has incorporated the intent requirement into its Fif-
teenth Amendment lexicon.
See Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S. 193, 223 (2009) (juxtaposing the Voting
Rights Act § 5 with the Fifteenth Amendment, explaining that the
former “prohibits more state voting practices than those neces-
sarily encompassed by the explicit prohibition on intentional dis-
crimination found in the text of the Fifteenth Amendment”);
Re-
no v. Bossier Par. Sch. Bd., 520 U.S. 471, 481 (1997) (“Since [
Bol-
den], a plaintiff bringing a constitutional vote dilution challenge . .
. under the . . . Fifteenth Amendment[] has been required to es-
tablish that the State . . . acted with a discriminatory purpose.”).
It is true the Supreme Court has never held that the Nine-
teenth Amendment contains an intentional discrimination re-
quirement. But given what the Court has said about the two
amendments, we as an inferior court are not at liberty to craft a
different rule for the Nineteenth than the one the Court has ap-
plied to the Fifteenth. Despite McCoy’s and Singleton’s well-
crafted arguments why a Nineteenth Amendment claim should
not require a showing of intentional discrimination, given the
current legal landscape they cannot succeed on this claim, and the
district court did not err in denying it.
AFFIRMED.
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20-12304 J ORDAN, J., Concurring 1
J ORDAN, Circuit Judge, Concurring:
I join Judge Jill Pryor’s opinion for the court in full and add
the following thoughts on the plaintiffs’ Nineteenth Amendment
claim.
The Fifteenth Amendment, which prohibits the denial of
the franchise “on account of race,” has been read or understood
by the Supreme Court to require a showing of intentional dis-
crimination.
See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 63
(1980) (plurality opinion);
Reno v. Bossier Par. Sch. Bd., 520 U.S.
471, 481 (1997);
Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 223 (2000). As the court points out, the Nineteenth
Amendment, which prohibits denial of the franchise based on sex,
similarly uses “on account of” language.
Though the plaintiffs make a valiant effort to set out a the-
ory under which disparate impact is sufficient to make out a Nine-
teenth Amendment violation, that effort fails for a couple of rea-
sons. First, when identical words or phrases are used in the Con-
stitution, we should generally presume—absent some good rea-
sons to the contrary—that they mean the same thing throughout.
See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 329-30, 332-33
(1816); Akhil Reed Amar,
Intratextualism, 112 Harv. L. Rev. 747,
761 (1999). So, if “on account of” requires a showing of intention-
al discrimination for the Fifteenth Amendment, it should also re-
quire proof of intentional discrimination for the Nineteenth
Amendment unless there is a sound basis for a different reading.
Second, it seems to me that there is no good reason to avoid the
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2 J ORDAN, J., Concurring 20-12304
presumption that identical words or phrases in the Constitution
generally mean the same thing. Not only do the Fifteenth and
Nineteenth Amendments target the same conduct—
discrimination in voting—the phrase “on account of” has been
understood to mean “because of” since the late 1700s.
See Web-
ster’s Dictionary of English Usage 687 (1989) (“
On account of was
first recorded in this use in 1792 and has long been established as a
standard in both British and American English.”).
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