thing with us today she started off in the u s attorney's office and then was professor of law for a few years then was  be the director of the federal judicial which she served for almost ten years and then and since then she has been sitting actively with the morning your honour's may please the court p patterson for the appellants in two thousand and eighteen the people of florida made the historic decision to extend the franchise to felons upon completion of all terms of their criminal sentences the plaintiffs are here today as individuals who have not completed all terms of their sentences and they are complaining that the people of florida did not go far enough but the equal protection clause does not support their claims  district court's decision to the contrary must be reversed and that is for three primary reasons st plaintiffs have not shown intentional discrimination nd this case does not involve the fundamental right to vote and rd this case does not involve the deprivation of anyone's right to vote but rather the extension of the right to vote to previously and eligible individuals on the st point your honour's is this court made clear in the hand decision in the context of  reem franchise meant an equal protection claim requires a showing of purposeful discrimination the plaintiffs here at night even argued for intentional discrimination so their claim fails for that reason alone and indeed it would make no sense to allow a disparate impact theory here when all agree that if the discrimination were on account of race disparate impact would not be sufficient and yet the argument here is that disparate impact is sufficient for discrimination on the basis of wealth which unlike race is not a suspect classification that would make no sense and that is not the law as i said in our disparities on the grounds of wells ever treated so heightened scrutiny analysis yes there are two narrow circumstances in which they are treated the heightened scrutiny analysis one is the beard and line of cases which holds that if a person is going to be thrown in jail because of their lack of wealth then a heightened form of scrutiny will apply the other exception is involving access to appellate proceedings in criminal cases and in cases involving the terminations of parental rights and that other narrow circumstance the united states supreme court has held that heightened scrutiny applies but as this court made clear in the walker case those are narrowly circumscribed exceptions and the court should not extend those exceptions to a new circumstance particularly since they are out of step with the washington v davis line of cases which post dated the graph and line and some of these other cases showing that you have to show intentional  these potential voters are on able to pay would it not then follow the analysis of their mail be case where it expressly hailed that washington the davis and intent did not it would not fall d under the analysis of m o b st your honor that was within the narrow exception for access to appeal in a criminal proceeding is more important than the right to vote well no your honor but this case does not involve the fundamental right to vote because the plaintiffs the moment they were convicted of their felonies forfeited the fundamental right yes but the varied to vote has now been reinstated and doesn't lose that fundamental characteristic of something really important once it's reinstated that it can be treated not to even be as much as  the right to appeal get a transcript on appeal it's been reinstated in a very specific circumstance and that is upon the completion of all terms of a felon sentence when the justice of their individual case as determined in their criminal proceeding has been done that is when the right to vote is reinstated and till that point it is not reinstated as justice o'connor said in the harvey decision this is just like the would happen if there were indeed there were no indigent plaintiffs in that case right well they were not making that as applied claim in that case but what she said is that we are not going to determine whether that would pass rational basis review as applied to the those  specific individuals but that made clear that the analysis getting to that point would apply including there is no reason to distinguish between different classes of felons let me ask the question th know that you are right that we have to review this case through the prism of rational basis scrutiny rather than some form of heightened scrutiny as applied to the seventeen plaintiffs how is it irrational to demand for really enfranchise meant that they do the impossible if indeed it is really true that they simply cannot make restitution not now not in any foreseeable period let's just assume that for my question how is it irrational to didn't do them or free  franchise moment at the same time that you automatically re enfranchise those who are capable of arrest the two should marry obligation well your honor to rational for the voters of florida or the people of florida to insist that re enfranchise ment is conditioned upon the repayment in fool of a felons debt to society regardless of that felons wealth and there is no wealth classification in this in this provision it is silent as to wealth the only wealth classification would be in the district court's injunction which requires the state of florida to take into cognizance ability to pay but it is rational the line that the people of florida drew is entirely rational and perhaps the most rational line in terms of when a felon will be re enfranchise let me come back to my question it seems to me it's all how you frame it i'm asking whether it's rational with respect to some subset of these felons to continue to didn't do them of the right to vote simply on the snus if indeed it is clear they simply cannot pay absolutely impossible why would that be rational as to them i understand the argument that that's not the way to frame the question that we have to ask more generally is it rational to apply a new true rule of general application but before we get to that i want you to help me just with my narrow specific question which i expect you will say is the wrong question and maybe it is but in the so far as you ask whether it is rational not to re tris someone who simply cannot pay and there's no expectation that he will be able to pay what interest of the state is being satisfied by doing it doesn't incentivize it doesn't rehabilitate it doesn't make anybody whole who otherwise you are obliged to make whole as to those people how is it rational yes your honor so accepting the premise of the question the st reason it's rational is under just a richer beauty of theory of justice that the these individuals are not going to be restored to the voting community and till their indicating that no one would suggest that a state can punish soley because on the basis of poverty does it not  believe you are correct about that your i don't care does that not also mike common sense in that context and your honor here no one is being punished the punishment of does not vary i just thought you said that that was retribution and punishment was what you were asserting as a legislative purpose that is the purpose of their initial punishment upon being convicted and that is when they are disenfranchised the laws being challenged here do not disenfranchise anyone they only enfranchise but isn't it punitive counsel to say i'm locking every enfranchise this group i will automatically re enfranchise of that group i thought that is part of a lawful sanction but it is a sanction it is a punishment isn't it well the sanction became for these plaintiffs many years ago when they committed and were convicted of their felonies and as the supreme court made clear in the katzenbach case there's a difference between laws that disenfranchise and then reform laws that really enfranchise and in that latter category state has particularly broad discretion to draw lines and to say ok here is our reform is going to go this far to stay in no further states still needs a legitimate interest in passing a certain category and what is the legitimate interest in keeping people from voting on the grounds that they can't afford to pay their fines or whatever well again that's not this these laws are not drafted in terms of whether individuals can afford to pay or not it is a bright line standard that says until justice has been done in full we are not going to welcome you back into the voting community and that's perhaps the most rational line that the people of florida and i could accept that as a general observation the problem that i'm having is getting an answer to my question which is is it a rational to say i'm going to do new to this group from voting worse the other groups similarly situated gets to vote simply on account of the inability to pay is that rational yes that is rational under the doesn't seem to be right if you ask the question i supplied well i thought you required to convince us that it's inappropriate to ask the question the way i fashioned it and it has to be asked more generally neutral rule general application there's a rational basis because it incentivizes payment but i don't understand how that would apply to a subclass that you can't incentivize well and as a follow up to that question and i'm posing this also to the other so they can be thinking about it and answer but i think i'm not sure because i have researched this applied to these people it is not are there not such cases i not in a rational basis review and i think that is the principle answer in terms of the way you framed the question under rational basis analysis the legislature is entitled to be over inclusive or under inclusive this is not a least restrictive alternative inquiry but even putting that to the side so i think that is the main nd saying even if they are not such cases in there as applied like that last question if this these provisions constitutional an would that not number one both look toward intent and to indicate that even apply generally it is not  sound no your honor and the reason being that the as a forest green court has said the people and for their chief purpose was to read franchise felons but only upon completion of all terms of sentence so that was the been in jail and they don't have it and they have no income and they will not be able to pay fines and restitution over let's say five hundred dollars back to the katzenbach case justice brennan for a unanimous united states supreme court there is a distinction between laws that disenfranchise which this law doesn't the disenfranchisement had already happened and laws that enfranchise that extend the franchise to a group of citizens that were previously ineligible that is what these laws that are being challenged do they are in franchising but we are not we have not any we are not really in french as in just a group and there is a rational basis for distinguishing between this group and another group we are in this case re in french as in a felon who was convicted of probation and he can vote the the same situation the same crime the same sentence the same probation the same file and he cannot say precisely the same situation and yet he is deprived of the vote or it's not precisely the same situation because that person has not repaid their sizes i same situation except full punishment on account of poverty not on a count of poverty on account of the justice other words he is responsible for culpable for is poverty he was culpable for his or her criminal conduct that led to that sanction being his mother and she really is assuming that nothing has happened between taking the vote away there's been a reinstatement that makes it different they now are on an equal thing about whether they're all going to be able to vote with the reinstatement and the only difference between the two people you've just heard the votes been reinstated for both of them one of them can't vote because he hasn't paid the fine and he hasn't paid the fine because he can't afford to pay the fine correct your honor and that is as both the washington supreme court and the th circuit have held there is a rational basis for that and that is getting back to judge marcus as question seeing justice being done having a bright line rules so that if you have an exemption for these well let me ask you the question this way counsel does the record reflect what proportion of otherwise rian franchise  are able to pay and how many are not here is what there are two relevant data points in the record that i believe your honor one is on page nine hundred and fifty seven dollars of the supplemental appendix which is the report of the other side's expert and it showed that felons out of prison over twenty percent have zero fines over sixty percent have a one thousand dollars or less and over ninety five percent have five thousand dollars less right i understand that but what i'm asking is is there anything in the record that tells us what percentage of the whole his able to meet their obligations and how many cannot  there's nothing in the record specifically to that the closest thing is on page i believe document one hundred and fifty two at twenty eight which is a department of corrections report that shows that the number that are at risk of have the burden of course and it's any you know they have to disprove any real rationally conceivable purpose so your argument boils down to its finest point is regardless of whether it's rationalized the song as applied as a general rule neutrally applied it's rational and makes sense and you can't go beyond that and ask whether it's rational as applied to some subset that's your position well that none of that is my position that yes you have to judge the classification that the legislature made is that a rational classification a but then b i believe it also is rational even if you were to narrowly focus on  seventeen as you mentioned both for again seeing that justice is being done in full ensuring that you're not opening up other people potentially not paying because there is an exception and then also i didn't mention administrative burdens associated with making these case by case determinations but i see my that's all right my time is going to shift gears and you're an address well go on not this is in fact a fundamental right or something close to it it seems to me that our shepard case in the form of this kit is distinguishable but goes here the in that case it was you have this situation like i am a talk about a minute ago where you have a felon imprecisely the same situation as you can vote as the person who can't vote would disown the exception of poverty or inability to pay  it seems to me that those cases that have said this is not a fundamental right all with the exception of the th circuit majority and washington state madison case with exception of those two have read of the court that is said that his not man in a situation where you have this really an seems to me just as a matter of common sense that the nature of the right to vote cannot change the right to vote is a fundamental right we know that supreme court said that  many many times the right to vote is a fundamental right the issue in the proper question is who is intitled to that fundamental right and we know that a felon when he is change on the basis of who is entitled to and who is not entitled to laugh though it seems to me in this case what is it stake for the felons who are automatically re in french as to accept what is it steak is a fundamental right to vote is it not does that not make common sense it's not at stake and for the reason that justice o'connor said in the th circuit is that until the qualifying conditions are met the fundamental right to vote is not reinstated she believed she did not address this question well she  then just didn't said well that is the reason that rational basis applied right what she said and then i said i'm not going to determine whether there's a rational basis as applied to those who can't afford to pay but she didn't indicate that it would be a different sort of analysis that it would implicate the fundamental right to vote and the washington supreme court in the th circuit the reason that those are the only cases addressing this is because those are the only cases so every appellate court that has addressed this has gone the state of florida's way and hel that this is a extra entirely rational distinction and i would submit it's even more rational than the distinction at issue in the sheppard case which was if you finished probation under texas or supervision you could regain your right to vote but if you've finished your probation under a federal court sitting in the stated taxes for the same exact crime with the same exact punishment you were precluded forever from getting your right to vote back so i would submit that if anything that's less rational than the law and that is at issue here let me ask the question this way and i've got three for you one just going back to rational basis review could the law demand community service from a defendant as a condition to reinforce anchises moment where the defendant is otherwise so disabled as not to be able to perform community service if he if the question were if the line judge demands community service on the front end defendant goes to jail for fifteen years comes out paraplegic cannot perform the obligation of community service he hasn't performed all of the terms and conditions of a lawful sentence imposed by a court by your lights he would not and could not be in franchised is that rational if it were a situation like this where i was a general does i take i take my high def medical in the context of neutral rule general application yes then that would be actually rational because again under rational basis review it's not the little least restrictive or alternative there can be over inclusive eighty and under inclusive eighty and you know why you may hope that so it gets back to the proposition that you can't ask the question in th particular as applied you must ask the question soley in the general form because she would have to concede would you not that if you asked the question as applied to the defendant who plea and cannot all the wise perform an obligation of community service and thereby is denuded of the right to vote makes no rational sense right maybe maybe in that honor i'm not sure how would that make any rational sense well again if it if the line is completion of all terms of sentence and that is a term of that person sentence and they haven't completed it even if they cannot complete it it's the same if a person is put in jail if their sentence is life in prison under the terms of this law they're never going to be able to reach the isn't the right on a lot of there is the defendant who pays ten grand to the sta incarcerated for life couldn't vote and the defendant was in stipend of ten grand but not the other who can't know because that would be a naked wealth class classification would be arbitrary and irrational so it's not tied to that person's scent it's not tied to justice in their case and i think your honor what what the other side is really doing is they're attacking the underlying sentence itself they're saying it's not rational to apply this sentence to me because i can't afford to pay i think what they would say it's not rational to refuse to reinforce this group when you're going to re enfranchise the other group where the only distinction or disparity is on account of welsh well i if we do nothing until the th and the stay is lifted what happens what's the impact on the state well march th early voting begins for the primaries or the seventeen applicants well if the state is if the stay is lifted and then just right it's sort of magically lifted right by the operation of it's own terms right well that i'm nothing is going to happen then because the state would be it say that the dish the state had to provide a procedure whereby they could prove that they are entitled to vote well the injunction for these specific seventeen plaintiffs was that they be allowed to vote because the finding was that they can't afford to vote for to complete their so what but clearly the injunction would extend or that clearly do you think the injunction would extend beyond these seventeen people not because nobody but the th that the court was very clear that it only applies to the seventeen people so as of february th the seventeen people would be able to register to vote but no it wouldn't extend to any other people in the same position no i thought they've already registered yes they've already registered so that is part of the order the secretary of state i'm reading from powergrid three of the district court order the secretary of state must not take any action that both a prevents a plaintiff from applying a registering vote and b is based only on failure to pay a financial obligation the plaintiff asserts the pla genuinely on able to pay the plaintiffs to which this paragraph applies are and then he got lists at least fifteen of them yet so we haven't done anything to inhibit these plaintiffs ability to register it's my understanding that they have registered but you know they can obviously speak to that so the bottom line is if the stay automatically is lifted then it would be by the th and the absence of any action here they would be the state would be obliged to let them vote in the primary between march th and the th yes and as the as the district court acknowledged if that is if we are correct on the law and that is allowed to happen that would be both a irreparable harm and be against the public interest discord acknowledged at all essentially turns on the merits thank you thank you thank you s good morning your honors may please the court my name is julie evans dean on behalf of the plaintiffs my colleague and i will address the court in two parts i will address descript wealth discrimination in voting and then ms lange will speak to the griffin bearden line of cases more broadly and any questions about jurisdiction this case is a straightforward application of a well established principle access to the franchise cannot depend on affluence this court sitting on bank and johnson already applied that principle from harper in the context of rights restoration in florida johnson did not establish what scrutiny though did the court and johnson did not establish what level of scrutiny it simply said that access t franchise cannot be conditioned but that decision and johnson applying harper relates to other supreme court precedents for example the exception described in m l b vs as l j and the lubin and bullet cases that are also mentioned in and i'll be there what the court said was that when it comes to elections the basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license essentially that voting is different wealth cannot be the determining factor on whether or not somebody is able to participate the two cases that are also addressed in m l b bullock and lubin are consistent with the same principle that a heightened level of scrutiny applies the in both the court invalidated filing fees candidate filing fees on the basis that plaintiffs there were unable to pay and there was no reasonable alternative means of access to the about the close scrutiny was applied to invalidate both of those laws on the same principle as in harper which is that access to the franchise cannot be dependent on an individual's ability to pay that that effect let me tell you the problem that i have with johnson and maybe you can help me with it it's certainly states a high order of abstraction that access to the franchise cannot be made to depend on an individual's financial resources citing harper but what happened in that case there was no automatic rian franchise meant for one group and not another the disparity in that case was with respect to applying for clemency before the clemen  board a wholly discretionary act on the part of the governor and the members of the clemency board we don't have that here in that case the disparity in here and in the fact that if you made the restitution if you had the wealth you didn't have to have a hearing you could apply on paper but if you didn't you had to have a hearing in a holy discretionary way i don't think johnson takes you all that far maybe i'm misreading it in that sense but when you look at the holding in johnson the bulk of the case it's a it's a discrimination case on account of grace but with respect to the issue of wealth the disparity turns on the discretionary application to the clemency board in one instance the applicant has to go through with a hearing if he can't pay in the other instance he can apply for discretionary relief on paper isn't that literally the holding and the court says that doesn't violate the equal protection your honor you're absolutely correct that at the time johnson was decided there was far less of a right to restoration there was in fact only the right to apply for discretionary clemency as far as the distinction between those able to pay restitution and unable to pay restitution those who could pay restitution could apply as your honor said without a hearing there was however a waiver of that requirement for anyone who for any reason had not met the requirements of the without a hearing application so that only distinction between those who had to apply with a hearing and without a hearing was that they had to request a hearing that they were not even required to attend that waiver provision is greatly the basis on which the court ruled against plaintiffs in regards their th amendment claim but the significant piece of that decision and specifically that footnote is the court was very clear about what standard applies so the court determined that the harper standard does apply in that context of rights restoration in florida surely it could have come to the same decision applying a different legal standard to those circumstances but it did not and it's significant that it shows to apply me as a question this way holding aside johnson for the moment and just speaking for myself it seems to me johnson  states an abstract principle but doesn't help you all that much because in fact the issue was a different one but the hold that aside is there any other case that you can  that applied heightened scrutiny to something like you have here were all classes been disenfranchised lawfully because of their fel convictions your honor the bind them case did determine that it was a significant question and referred it to a three judge panel they're applying force the problem there that it's about that nd circuit case right honor the problem there is all the court was called upon to decide was whether the question was serious enough to require a three judge court to examine it more specifically is not right and that's correct your honor but even so the court there did speak to the concern and the significance of applying wealth based distinction distinctions in voting richardson itself  re man did the question of uniform application of the law down to the state court so while so there is not there's an indication that that's still a valid concern the disparate treatment among different groups of those the felony conviction the harvey case out of the th circuit written by justice o'connor by explicitly choosing not to speak to whether an as a the as applied question of whether somebody who cannot afford to pay can still be denied the right to vote implied certainly that there was a difference in those two circumstances let me ask you do you need to get to heightened scrutiny i mean couldn't an argument be made that rational scrutiny with and hand attention because of the nature of the right that's involved voting in particular i mean because if there is a scarcity of cases that get you to heighten screwed so let me ask you that your honor with either level of scrutiny we think that the court properly ruled in our favor as far as heightened scrutiny as i described there there are a line of cases on point but even under rational basis as applied to our plaintiffs all of the justifications that the state puts forward are not rational and generally wealth this wealth is not germane to elections right you respond to you respond to that and answer my question that i posed to him are there cases saying that in and i as applied challenge you do look to the rationality as to the plaintiffs to whom it's being applied rather than the general nature the general statute as a whole so your honor to speak to your st question st of course it isn't as applied challenge and we have grounds to argue that it's irrational as applied to our plaintiffs but even as legislation passed for the generality of cases it is still irrational the state of florida itself has said that there is a minimal collection expectation for approximately eighty percent of the one point one million dollars a sorry one billion dollars debts that are owed to florida many of which are mandatory there as does that equate to persons who are truly  pay or separate persons who do not pay in other words they are able but they get away with not there are two different statistics that i think are relevant your honor the eighty percent with minimal collection expectation includes both people who are indigent and on either unable to pay on that basis and people who are currently incarcerated we have the finding of fact from the trial judge about what percentage of  whole class the in the general war your honor the judge not specifically find what percentage of the class of people with a conviction more broadly in florida but he did note the figure that i just stated and that's in the appendix at ford ninety one and right but when i looked at it he made no findings saying of this group this percentage is in pick unison can't pay that percentage is able to pay he did not say that your honor that's correct he did know that the that florida itself does not expect that it will has the burden to establish that assuming argue when we look to neutral rule of general application and ask whether it's rational who has the burden of a stab at the exception essentially swallows the rule that is to say the indigent are so big a part of the whole that it makes no sense to ask the question a russian are already so generally don't you have that burden we do your honor and of course as applied to our plaintiffs who have put in uncontested evidence into the record that they are unable to play we have certainly met that burden all of the evidence in the record does however show that that the state itself does not expect to get paid back for approximately three quarters of the debt so while the court may not have found made a specific factual finding on the reasoning the underlying report that he cites does say that it's because of indigent or incarcerate or notes of those folks are either indigent or incarcerated let me come back to  clarify is it clear that they just those two categories and a gent and incarceration and not a rd category of  incarcerated not ended jan but get away with not paying the florida clerks and comptroller's report that we cite in our brief and that i believe the district court relies on gives for that eighty percent that that they don't expect to be paid back from is incarcerated and indigent those are the two that are covered so even if the report did not make a  specific finding about why they didn't pay it back when every single defendant comes out of the criminal justice system in florida if they have a conviction with hundreds of dollars in mandatory fees and oftentimes in addition to that restitution obligations for costs i think if somebody is indigent and facing those fees it's a it's a small logical step to assume that that's the reason for their inability to pay back to ask you let me go back  again to judge your candor since question is there any case law or line of cases you can point to that says we look at irrationality with respect to the as applied group rather than asking more generally as to whether it's rational to posit a new tool or general application even if it falls disproportionately a subset of that group yes you are to your question judge anderson nd question the the line of cases on wealth discrimination generally not specific to voting griffen bearden mayor and williams they all treat the statutes that require payment in a similar way which is they say it does invidiously discriminate because the fee requirement or the payment requirement is grossly  disproportionate an application meaning that the statute itself that says you must pay certainly on its face makes a determination based on money based on ability to pay so those are as applied challenges right but in every one of those cases the court reaches out for heightened scrutiny of some kind does it not it does your honor none of those cases involve your rational  reason that arguably connects the means in the ends in some rational way what i'm asking is whether there's anything in the law applying rational basis well your honor of course in the voting context because heightened scrutiny applies it would not cover those cases in the generally for rational basis i having trouble thinking of a case where eighty plus percent of those of the only people affected by the law are and are in fact have there's no rational basis to apply it to them eighty percent of the class simply had an obligation that had not yet been paid off your honor our there's two different statistics that are important our expert was able to find that eighty percent of people within the state of florida convictions not including federal and out of state convictions he was able to positively identify a number of records eighty percent of whom had not paid but as far as the florida courts and comptroller's report but he did not say they c dollars with our individual plaintiffs of course who are who are at issue here they have also made it uncontested evidence that they cannot pay the amount assessed against them the nd statistic along with dr smith's report is the florida clerks and comptroller's report itself which is where we get this eighty percent number of folks who are either indigent or incarcerated so that is not a specific finding by the court that they were unable to pay but given their ind mandatory fines and fees across the board in florida i think that's a reasonable bade one other comment that i was interested in you said even if the appropriate reference to these new true rules of general application is the whole class of disenfranchised felons who have not formed all of the terms and conditions of the sentence that would still be irrational why is so because they claim if this were a facial challenge and if we were looking at the state legislating for the generality of cases as opposed to as applied to those unable to pay the generality of cases are unable to pay the generality of cases in florida are fine so that turns on an empirical finding that the bulk of these folks can say that that does turn on the facts and we do not have  finding about that and i don't know how we could reach that and make that finding ourselves based on the record evidence here your honor i believe that the district court's recognition that three that florida itself does not expect they'll be able to collect these unpaid legal obligations from about three quarters of the people and the underlying reasons for that inability to collect including indigents is basis enough to to speak to the generality so should we be making that finding of fact in the absence of a finding where the district court is that you are you know you are i believe the district court in identifying and finding that seventy that over seventy five percent of those who are l f those in florida are indigent or incarcerated that that provides a basis for this court to affirm the district court's decision even if we look at this again where where far down the road of plaintiff's claim even if this were not as applied challenge let me ask you one other question your colleagues have raised an interesting argument about administrative burden they say if i have it right that if the state is put to the burden of doing what you say they should be doing that is to say examined case by case individual by individual the genuine capability of paying restitution fines or of fees that the task is a formidable one dollar it's an expensive one and will have the net effect of slowing the whole process down even for those who otherwise would be properly rian franchised he says that's rational problem that's rational ground to to be cautious work or to sitting in equity what about that your honor that's an important question and i think what's significant about the district court's order is that it was very narrow it left to the state to find an appropriate means to determine who is unable to pay and the court to itself over the course of this case has suggested different formulations that would not require an administrative burden it's suggested for example a checkbox on the registration form so that  people could affirm their inability to pay outstanding legal financial obligations but would require a form of some kind to be distributed we're familiar with the bond hearings are held all the time the magistrate judges in federal court issue a statement and they say fill it out do you have any assets if so what kind do you own any property of so where do you have an income of so how much as a means of determining indigency for getting a lawyer where the costs are substantially higher than the costs associated in many instances maybe most for paying a fine or maybe even restitution just strikes me is a substantial obligation if the scrutiny is heightened it wouldn't count for much but if the scrutiny is rational why wouldn't that be a fair factor for a court and sitting in that county to consider in deciding whether to pronounce an injunction your honor as the district court has recognized for most of those convicted in florida that process has already taken place so another one of the court suggestions for in a minister bull method that the state the state itself could choose to to administer this law is that anybody who had been determined indigent at the time of their conviction there could be a rebuttal presumption that they are unable to pay outstanding legal financial obligations the court suggested at one point that there could be a rebuttable presumption that if somebody is receiving public assistance that that indicates another instance where their inability to pay has already been determined so not only does the state as your honor recognizes in a number of different circumstances determine people's inability to pay it has already done so for most of those who would be affected by this decision the a checkbox on the registration form of course would include an indication under oath on a form that somebody has already required to submit to the to the department of elections so it does not involve any additional determinations any one by one determinations on the part of the state the state has not acted to find i to two more broadly apply this since the decision in october but that is on the state alone the district court certainly permitted the state to to construct its own solution that would decrease or minimize the injunction that they be permitted to vote to stablish in there and it generally is that correct your honor i think that those are the plaintiffs of course the order applies specifically to them the order puts those who are already registered to vote and have not under state law been removed from the rolls in a very difficult position of not being able to determine or facing the potential threat of prosecution should they go cast their ballots so they have registered to vote the secretary of state has reviewed their application the supervisor of elections has put them on the rolls they have received a voter registration card by all indications they've been told that they should go cast their ballot on election day the state under state law would have to take at least thirty seven dollars days to notify somebody of potential removal from the rolls and offer them a hearing so i don't believe that in general folks who are registered could possibly be removed in time for the registration deadline but certainly the states failure to act on the district courts and junction does put a great number of people in a difficult situation of not having clarity from the state despite their receipt of a voter registration card and instructions for voting they may not have clarity on what they would face should they go exercise their right i mean is what you're saying then that a number of people have signed up and registered to vote who haven't finished paying their financial obligation since i memon four and the legislation seven thousand and sixty six have gone into effect the department of state has continued to administer registration and elections by registering people who submit a facially sufficient voter registration form so we can presume that those who have their rights both because some people are not even aware of their outstanding financial obligations due to the record keeping of the state and on the numbers we can presume that some people who may have outstanding legal financial obligations submitted an application the state itself reviewed it both at the state level and at the county level and they were registered to vote and that ties into the not specific clarity amongst the state's records is that my correct yes your honor i think the difficulty here is that the state has not been clear has not offered rule that access to the franchise cannot be made to depend on an individual's financial resources is part of a much broader and unbroken line of cases from griffin to harper to beard and to m l b that hold the state cannot withhold ac denial of the statutory benefit of really enfranchise meant that arizona can for years upon certain felons this is not a fundamental right it is a mere benefit that as the plaintiffs admit arizona can choose to withhold entirely therefore we do not apply strict scrutiny as we would plaintiffs were complaining about the deprivation of the fundamental right i think the analogy to beard and hair is particularly important especially given that justice o'connor wrote bearden so puritan is also a case about the statutory benefit actually both cases are about a statutory benefit that extends a fundamental right that has otherwise been properly stripped of a criminal defendant in the case of bearden a criminal defendant has been convicted of a crime and has been deprived of their liberty appropriately as a result of that conviction and the question is the statutory benefit that the supreme court has said you have no right to it's a matter of grace probation and how that right is going how that benefit that restores an important right of liberty is going to be allocated and there what justice o'connor said was that the critical distinction was between those who were unwilling to pay and unable to pay and i think that has to be why judge justice o'connor made that explicit caviar in harvey said we're not talking about a case of inability of inability to pay and while she said that rational basis would be the mechanism result yes but judge marcus i think you had earlier asked a question of whether or not there was any rational basis case that was focusing on the rational basis as applied to it at least i would submit that justice o'connor in harvey there would be no reason for her to make that caviar if you would just look at the general rule of a plug ability and not look at it as applied to people who are unable to pay so i would submit that harvey is precisely the case that you might have been asking about whether it existed you certainly suggested that was the case i think cleburne is another case of discriminating against the mentally disabled and as applied challenge there look what what case did you say city of clyburn and sometimes these cases are called rational basis with bite cases and i think it is a proper reading of beard and there's there's at least two ways to read beard and one is that you know there's a heightened scrutiny here the other is that you know you're looking at something like rational basis with fight and that's because well but let's let's just stop at that for a moment as i always understood rational basis it meant that if i could come up with any rational explanation whether the state offered it or not for what they had done in terms a statute or an ordinance that was the end of it it was constitutional whatever else bearden did or didn't do that's not the analysis and beard bearden is a form of heightened scrutiny they don't say it's rational basis with byte they don't say it's strict scrutiny but they sure employ some form of heightened scrutiny they analyze the interests of the state the analyze the interests of the individual they drill down to see how powerful each interest may be and they come up with a conclusion that's more than yes your honor at but i think that it's also more than the ordinary rational basis analysis to suggest that you would have to look at the rational basis as applied to people who are unable to pay which is what justice o'connor suggested would be necessary in harvey and it's important that i think that to know the justice o'connor didn't think that the labels of heightened scrutiny versus rational basis are particularly the appropriate framework in wealth discrimination cases what she wrote in bearden is that this cannot be put into a pigeonholed analysis and that slogans about heightened scrutiny strict scrutiny would not be the appropriate framework and instead what she said is that we should look at the nature of the interest and we should look at the means that the state is choosing and whatever state legitimate interests are right that is a higher level of scrutiny and that test was real reapplied and restated an animal be  doesn't it come down to how you frame the nature of the interest here because the state is saying the nature of the interest is not a fundamental right because you could take it away take it away give it back whatever the state decides and that changes the nature of the interest so that it's no longer a fundamental right and not as important to justify whether you call it strict scrutiny heightened scrutiny or rational scrutiny plus they are arguing that the nature of the interest is no longer a fundamental right because it's applied to felons who you can take it away from the state argues however it fails to reckon with any of the wealth discrimination cases in framing it that way because of course the right to liberty is very and for and justice o'connor took that into account in beard and even though the right to liberty had been properly stripped from the individual in question and the only issue at stake was whether or not probation a statutory benefit an act of grace of the state was being either withheld or granted so if we should walt to equate the right to vote in this case with the freedom  authority do we have to do that i think the authority is i had the supreme court's holding that the right to vote has preservative of all other rights certainly the right to vote looking at it as anderson you said earlier putting aside whether or not these individuals are entitled to vote notwithstanding their felony conviction and they are not the nature of the interest is still one that the court has said is preserve of all other right so of course liberty is important but permanent felony disenfranchisement permanent exclusion from the political community is also an extraordinary punishment and there's no reason to  believe that the court that the supreme court thinks that the right to liberty is a limited period of time for the right to liberty is somehow much more important than the right that they have said is preserve it of all other right but even but you need rational basis group name and then you have the entire lot of cases griffen the illinois down through bearden which are in the about any fundamental right the court says repeatedly in its access to court cases that you don't have a right to appeal after you've had the due process of a trial you do not have a right to an appeal and yet in doling out that right to an appeal you cannot discriminate on the basis of wealth the case that came after griffin was harker and harper cites directly to griffin for the proposition that wealth cannot be a factor in access to voting and that's why i say that harper is not just a voting rights case it is a wealth discrimination case and clearly establishes that when the right to vote is doled out the wealth discrimination cases apply in fact harper stopped to no that the right to vote in state elections is actually found nowhere in the constitution and said we do not canvass here who has the right to vote and who does not we only say that as you distribute the right to vote you must do so in a way that does not discriminate on the basis of wealth so the court did not that the plaintiff had some preexisting fundamental right to vote the court said we're not deciding that question but where you dolt out the right to vote you cannot do so in a way that discriminates on the basis of wealth and that is precisely what s b seventy six does i did want to address briefly the defendant's claim our state's claim that there is no facial classification here and that's why rational basis should apply that argument has been made in every fines and fees case that the supreme court has ever seen and the argument has always failed for example and williams be illinois the court said and the illinois statutory scheme does not distinguish between defendants on the basis of ability to pay fines but as we said in griffin v l annoying a law on nondiscriminatory on its face may be grossly discriminatory in its operation and went on to say that by making payment of a fine the rule it was treating two categories of people differently all of that may be right but doesn't that suggest that the scrutiny is more than rational basis scrutiny i think it does your honor i think that you get where you want to go we've got to do more than hypothesize a reasonable basis for a new true rule of general application right we've got to do what justice o'connor laid out and bearden whether analyzed in terms of equal protection no due process and she's quoting from justice harlan the issue cannot be resolved by resort to slogans pigeon hole analysis but rather requires a careful inquiry into such factors as the nature of the individual interest affected the extent to which it is affected the rationality of the connection between legislative means and purpose and the existence of alternate means for affecting the purpose that's the analysis she lays out there isn't that the analysis that your argument compels us to use yes your honor i think it's undeniable that that is what appeared in holds and that the defendants have not provided any rational reason why the griffin harper beard in line of cases should not apply i would point out that on page sixteen of their record reply brief there is a search in that the griffin line of cases has been carefully to the access to court cases however there are four supreme court cases cited after that proposition none of them stand for that proposition three of them stand for the proposition and three of them are cases about access to court that wealth discrimination case was a bus to get to school and the court held that that was acceptable and in distinguishing the griffin harper bearden line of cases the court did not say those are only about incarceration or children can get to school other ways than by a public bus of course we cannot our clients cannot restore their right to vote without the state's permission they have an entire monopoly and so every time we've seen k a d r and a and so the court has repeatedly laid out a wealth discrimination task it has said that where the the state has a monopoly our wealth discrimination cases apply where the right to vote or the right to political participation more generally our wealth discrimination cases apply where you are punishing someone for their poverty our wealth discrimination cases apply and i would felony disenfranchisement is a punitive advice so by any measure of the supreme court's wealth discrimination cases that is the analysis the analysis and beard in the judge marcus outlined is the analysis that must apply here but of course i do submit that even under rational basis particularly applying the kind of rational basis that justice o'connor suggests in in harvey we succeed as well harper does not only say that the right to vote is at stake and so we are applying so close scrutiny it also says that introducing wealth in voting qualifications is as a legal matter introducing an arbitrary factor  the court said whether one is innocent or guilty is irrelevant to wealth and beard and they said that one's payment of allophones when unable to pay is irrelevant to their her rehabilitation and so in all of these cases the court is sounding in both rational basis and heightened scrutiny so yes judge marcus clearly we believe that the scrutiny that's not pigeonholed but rather case specific in bearden is what applies but what they're saying that you have to have even in a rational basis you have to have a rational basis to justify a discrimination on wealth isn't that what they're saying yes your honor and that's because the law addresses itself to actualities while rules of general a plaque ability are are generally ok i think that the court recognizes that it's not really a rule of general a flick ability to say that if you can pay a fine you must pay a fine and if you pay a fine you can get this why can't the state of florida promulgated a rule that's designed and intended to incentivize felons to meet their restitution ery obligations to the victims of the crimes that they were involved in that seems to me to be perfectly rational it certainly can your honor and it there are plenty of mechanisms that the state of proceed that way they chose to say we will we enfranchise you if you make your victims whole that is to say if you meet your restitution every obligation as a general  incentivize right it may not with respect to the particular plaintiffs but as a general matter of might that not incentivize offend if the answer is yes that would be perfectly rational wouldn't yes your honor as a general rule but as we've been discussing in the wealth discrimination cases at minimum the court must look at the rationality as applied to those who are unable to pay and the the court has routinely said that trying to wring blood from a stone is not rational in the blocky the court said nothing about a rule that would withhold the right to vote until you paid child support was going to make child support forthcoming from an indigent person bearden so the answer to the rational basis question turns on whether we look at the global sweep of the enact men or whether as applied think that's where your earlier questions about findings of fact about how many people fall within this category apply and i just want to make a few additional points about the record in addition to what my colleague said on page five of the district court's opinion and the court recognized that a great number of people arrested and charged with crimes are poor one study using nationally representative data found that about thirty six percent of people arrested once and tw seventeen and forty nine percent of people arrested multiple times had individual incomes below ten thousand dollars per year well below the poverty level i would also note that specifically the record and the clerks report that has been not only shows the kind of calculation of expectation of payment it also shows that over fifty percent of outstanding l f photos have been converted to civil liens and the district court made a specific finding of fact that is over conversion to civil liens it's overwhelmingly the manner in which the state deals with individuals who are unable to pay at the time that they complete their sentence and it is a way of of taking those individuals out doesn't say that you completed your terms if though they have been converted to civil liens even though that is the state's mechanism for recognizing inability to pay and taking things out of the criminal justice system so just as in beard in the criminal court had found that there was no longer any reason for incarceration in the cases of civil liens of the courts have found that there's no reason for any more punishment for any more involvement in the criminal justice system and on able to pay any more than twenty five dollars per month which she is doing but under that payment plan she will not be able to vote for another decade she has been undeniably denied the right to vote in this upcoming election and every upcoming election  next next decade by virtue of her poverty and that's precisely what the constitution does not permit under the griffin harper byrd circuit's have all held that in disenfranchisement and rian franchise many cases harper is simply irrelevant it's rational basis review this court would be innovating if it were to apply anything other than rational basis review course that was pre richards and it didn't decide the question and later in hate in the nd circuit applied rational basis review in a disenfranchisement case there are no findings of fact from the district court about you know what percentage of people would not be able to pay but even if it imagine a hypothetical where eighty percent of the people were confined to life in prison and there was still the statute it would still be entirely rational because the view of the people in florida was unless and until you've in full that is the qualification to vote and that's an entirely rational qualification this is nothing like the right in bearden where the individuals had been granted probation they were free they had a right to freedom qualified one and as the supreme court in said morrisey that is a right that is respected in the constitution and that is why justice o'connor who wrote bearden and harvey and all the other courts to address this issue have said that this is different affected only the indigent that is not what's at stake here one of the plaintiff has fifty two million dollars in outstanding fines and restitution as they themselves said below a person could be quite wealthy and still be prevented from voting given that type of obligation so this is not a classification that affects only the indigent what about it legally what did you just say i said this classification does not affect only the indigent a person could be a multimillionaire but if they had fifty two million dollars in outstanding fines and restitution not be able to vote and they would still be within their claim their claim is inability to pay it's not indigency one last thing your honor is that the people of florida have drawn the line between full repayment to society and not for repayment if this court were to hold that the plaintiffs are right that that is unconstitutional then under established se principles under florida law and as the united states supreme court said in these types of cases you have to determine whether you extend the benefit to the excluded class or you rescind the benefit altogether in this case it's crystal clear that  the two thousand and seventeen advisory opinion case the florida supreme court said that the chief purpose of amendment four was to extend the franchise to felons who have completed the full terms of their sentence if the answer from the federal courts is that you injunction rather than a final determination there's some wisdom in avoiding the severability question can we do that here can we fairly say we've got a very slender it's surely incomplete on a lot of critical facts and we're just not going to get to the severability question now even though it may obtain at a later point when we have a full record would that not be a recognized it's an irreparable harm to the state and to the other eligible voters in the state if ineligible voters are allowed to vote last question on that are we bound to the florida rules of severability in making  what the district court's injunction effectively does and nd even putting that to the side you look to the purpose and the purpose here is clear as the organizations affiliated with plaintiff's counsel and their campaign literature emphasized that this amendment required the full repayment including fines and restitution internal documentation in those organizations indicated that that was critical to getting to the sixty percent threshold so under those principles the whole thing would need to fall of course that's not what we're asking for our submission primarily is that this was a constitutional decision for the people of florida to make