McCoy v. DeSantis: How Modern Litigators are Tapping into the Nineteenth Amendment’s Untapped Potential

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Lawyers from the Southern Poverty Law Center (SPLC) are currently pursuing a rare Constitutional voting rights claim in federal court, based not just on the Fourteenth and Twenty-Fourth Amendments, but also the Nineteenth.[1] This is a novel claim because the Nineteenth Amendment has seen relatively little judicial action since its ratification in 1920.[2]  However, it remains a potentially powerful tool for voting rights advocates more than 100 years later.

In November 2018, 65 percent of Florida voters passed Amendment 4,[3] the aim of which was to restore voting rights to the approximately 1.5 million[4] Floridians who had previously been convicted of a felony. The amendment went into effect on January 8, 2019, and many newly eligible voters cast their ballots in local elections shortly thereafter.[5] In May 2019, however, Florida’s Republican-controlled legislature passed a bill to “implement” this new constitutional mandate.[6] S.B. 7066—which is now law—limits re-enfranchisement to individuals who have paid all fees, fines, and restitution associated with their prior convictions,[7] despite the fact that the state has no reliable way of calculating these legal financial obligations (LFOs).[8] This requirement has rendered more than 80 percent of newly re-enfranchised Floridians ineligible to vote once again.[9]

In response, a group of 17 plaintiffs, joined by two local branches of the NAACP and the League of Women Voters of Florida, sued for injunctive and declaratory relief. The plaintiffs argued that the law amounted to an unconstitutional poll tax that disproportionately disenfranchised low-income populations and people of color.[10] According to their complaint, 21 percent of Florida’s African American population is barred from voting due to prior felony convictions—more than double the statewide percentage.[11] And individuals with felony convictions are five times more likely to be unemployed than the general population—making it significantly harder for them to pay off “hundreds, thousands, or even millions of dollars” in LFOs.[12] Plaintiffs argued that conditioning the restoration of voting rights on the payment of financial obligations amounted to a poll tax that violated the Fourteenth and Twenty-Fourth Amendments.[13]

            Two of the plaintiffs in the case, Rosemary McCoy and Sheila Singleton—represented by the Southern Poverty Law Center (SPLC)—alleged an additional Constitutional violation, one that has rarely been considered by federal courts.[14] In an Amended Complaint, they argued that because of gender-based inequities in salary and employment, S.B. 7066 would have a disparately negative impact on women, violating the Nineteenth Amendment’s prohibition against denying or abridging a citizen’s right to vote “on account of sex.”[15] They noted that women make up the fastest growing percentage of felony convictions[16] and that “the intersection between gender-based disparities in the labor force and pay inequities, both before and after incarceration, lead to women being far less likely than their male counterparts to fully satisfy LFOs in order to vote as required under SB 7066.”[17] As a result, women re-enfranchised by Amendment 4 are disproportionately disenfranchised by S.B. 7066’s fees and fines requirement.[18] This “diminishment of women from the electorate,” McCoy and Singleton argue, “will have a direct impact on the ability of women to exercise their political rights and to influence governmental decisions regarding the very issues that affect their daily lives.”[19]

This is a novel claim. As Professor Paula Monopoli[20] notes in her recent book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment, the women’s suffrage amendment has garnered relatively little judicial attention in the 100 years since its ratification.[21] Over the course of a century, only two U.S. Supreme Court opinions[22] have grappled with the Nineteenth Amendment directly, and just 37 others have mentioned it.[23] Combining both state and federal courts, the total number of judicial opinions that cite the Nineteenth comes to just 622.[24] The Fifteenth Amendment, in comparison, has been cited in 2,845 state and federal court opinions since its ratification—including 194 Supreme Court opinions.[25] In her book, Monopoli explores the various reasons for this surprisingly sparse judicial treatment,[26] and in her final chapter, she surveys recent legal scholarship exploring how modern legislators and litigators could tap into the Nineteenth’s untapped potential.[27]

One such scholar, Steve Kolbert, argues that the Nineteenth Amendment gives voting rights advocates an additional, largely unexplored tool to combat voter suppression.[28] In his 2016 article, Kolbert notes that “in the past few years, a nationwide wave of new state laws and procedures has burdened the right to vote. Today, women face a variety of obstacles to voting that may disproportionately impact voters on the basis of sex.”[29] For example, obstacles like voter ID laws, proof of citizenship requirements, and improper voter roll maintenance affect women disproportionately because the vast majority of women change their name following marriage.[30] Restricting access to the ballot box by reducing early voting, eliminating same-day registration, and limiting mail-in voting can also have a disparate impact on women, who bear the majority of child and elder care responsibilities and thus require more flexibility.[31] However, “despite the Nineteenth Amendment’s existence for nearly a century and the recent popular and scholarly attention to voting rights,” Kolbert notes that the Amendment “has not received any serious treatment or consideration as a tool to protect voting rights.”[32] His article seeks to bridge this gap by exploring the Nineteenth’s “application to modern-day voting restrictions” and establishing how it could provide a basis for new legislation and litigation.[33]

Use of the Nineteenth Amendment also opens an opportunity to bring intersectional claims. This is a largely untested strategy, particularly in the voting rights space, but a few scholars have articulated a legal rationale courts could adopt. Richard L. Hasen and Leah Litman have applied Reva Siegal’s theory of a “thick” and “synthetic” reading of the Nineteenth Amendment to voting and political rights.[34] They contend that “the Constitution’s voting rights protections should be read broadly and synergistically rather than focusing discretely on whether a voting restriction burdens age, gender, or race.”[35] While acknowledging that “Nineteenth Amendment litigation has been virtually nonexistent,” Hasen and Litman argue that a “thicker” reading of the Amendment could “allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color.”[36]

With its claims on behalf of Singleton and McCoy, the SPLC is putting these proposals to the test and helping determine whether today’s voting rights advocates can further develop the Nineteenth Amendment. In addition to noting S.B. 7066’s disparate impact on women in their arguments to the court, Singleton and McCoy identify S.B. 7066’s intersectional consequences as well.[37] They note that, upon reentering society, women of color “face more hardships obtaining employment, let alone a livable wage, than their White male, Black male, and White female counterparts.”[38] This “intersection between gender-based and race-based disparities in the labor force and pay inequities,” Singleton and McCoy argue, “lead[s] to women of color being far less likely … to fully satisfy LFOs in order to vote as required under SB 7066.”[39] As a result, the SPLC’s lead attorney in the case, Nancy Abudu, argues that “Black women, or women of color in general, need greater protection when it comes to their voting rights.”[40]

In October 2019, the federal district court held that S.B. 7066 amounted to a poll tax and granted injunctive relief, but rejected the SPLC’s Nineteenth Amendment claim.[41] Four months later, the Eleventh Circuit overturned the trial court’s decision on appeal, but did not definitively rule on the Nineteenth claim.[42] In October 2020, the SPLC filed a brief asking the Eleventh Circuit to hear oral arguments on the claim as a matter of first impression.[43] The cross-appeal notes that “the Supreme Court has not addressed the standard of review to which gender-based voting rights cases are entitled since the overruling of Breedlove v. Suttles” in 1937.[44] As a result, the “Court’s decision is critical to determining the level of legal protection lower courts must afford to female voters.”[45] While it is yet to be seen whether the Eleventh Circuit will take up these claims, McCoy and Singleton’s case is an important step towards realizing the Nineteenth Amendment’s potential to combat voter suppression and “make substantive gender equality a constitutional reality for American women.”[46]

[1] McCoy, et al. v. DeSantis, et al., The Southern Poverty Law Center (Apr. 3, 2021), https://www.splcenter.org/seeking-justice/case-docket/mccoy-et-al-v-desantis-et-al [https://perma.cc/839B-BQPX].

[2] See Monopoli, infra note 21.

[3] Tyler Kendall, Felons in Florida Won Back Their Right to Vote. Now a New Bill Might Limit Who Can Cast a Ballot, CBS News (May 23, 2019), https://www.cbsnews.com/news/florida-felons-won-back-right-to-vote-new-bill-might-limit-who-can-cast-ballot-2019-05-23/ [https://perma.cc/K35K-LAJK].

[4] Christopher Uggen, Ryan Larson, & Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, Sentencing Project (Oct. 6, 2016), https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/ [https://perma.cc/B67Y-QWAV].

[5] It is estimated that over 2,000 formerly incarcerated Floridians registered to vote between January and March 2019, about 44 percent of whom were Black. See Kevin Morris, Thwarting Amendment 4, Brennan Ctr. for Just. (May 9, 2019), https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmendment_FINAL-3.pdf [https://perma.cc/9MD8-FGGN].

[6] Kendall, supra note 3.

[7] § 98.0751, Fla. Stat. (2019).

[8] Plaintiffs’ Motion for Preliminary Injunction at 32, Jones v. DeSantis, No. 19-cv-300 (N.D. Fla) (2020), https://www.splcenter.org/sites/default/files/documents/plaintiffs_motion_for_preliminary_injunction.pdf [https://perma.cc/Z45L-7MGQ].

[9] Id. at 14 (citing Ex. A (“Smith Report”), ¶¶ 8, 61).

[10] Id. at 12 (citing Erika L. Wood, Florida: An Outlier in Denying Voting Rights, 1, 3, Brennan Ctr. for Just. (Dec. 16, 2016), https://www.brennancenter.org/sites/default/files/publications/Florida_Voting_Rights_Outlier.pdf [https://perma.cc/5FJQ-A7PG]).

[11] Plaintiffs’ Motion, supra note 8, at 12 (citing Uggen, Larson, & Shannon, supra note 4).

[12] Id., at 58.

[13] Id.

[14] See First Amended Complaint for Declaratory and Injunctive Relief, McCoy v. DeSantis, 4:19-cv-304-RH/MJF (N.D. Fla) (2020) https://www.splcenter.org/sites/default/files/documents/first_amended_complaint_0.pdf [https://perma.cc/DE8Q-SNX6].

[15] Id. at 26; see also U. S. Const. amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”).

[16] Between 1978 and 2015, the rate of growth of the incarceration of women in state prisons has vastly outstripped that of men. Women’s incarceration grew 834%, more than twice the rate of growth for their male counterparts. First Amended Complaint, supra note 14, at 20 (citing Wendy Sawyer, The Gender Divide: Tracking Women's State Prison Growth, (Jan. 2018), https://www.prisonpolicy.org/reports/women_overtime.html [https://perma.cc/RC5N-V58W]).

[17] First Amended Complaint, supra note 14, at 27.

[18] Id. at 28.

[19] Id.

[20] Paula Monopoli is the Sol & Carlyn Hubert Professor of Law at the University of Maryland Carey School of Law, and she is the author’s mother.

[21] Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Univ. Press, 2020). In her book, Monopoli explores the role suffragist organizations played in the “thin” development of the Nineteenth Amendment as a mere nondiscrimination in voting rule, rather than a robust equality norm. She details how many state courts, lacking test cases and left without federal enforcement legislation to guide them, strictly construed the Nineteenth Amendment to prevent a more robust interpretation from emerging. She concludes with an examination of new legal scholarship that suggests ways in which such a robust understanding of the Nineteenth Amendment could be used today to expand gender equality.

[22] Leser v. Garnett, 258 U.S. 130 (1922) (upholding the Nineteenth Amendment’s validity); Breedlove v. Suttles, 302 U.S. 277 (1937) (holding that a sex-differentiated regime of poll tax exemptions did not violate the Nineteenth Amendment).

[23] Monopoli, supra note 21, at 156 n.11 (citing case numbers as of January 1, 2020).

[24] Id.

[25] Id.

[26] See Monopoli, supra note 21, at 2-3. (arguing that the two major suffrage organizations behind the push for ratification—the National Woman’s Party (NWP) and the National American Woman Suffrage Association (NAWSA)—“made strategic choices post-ratification that took them away from the Nineteenth Amendment as a focus of energy and resources. That pivot meant that there was a less consistent, unified pressure on state courts as they parsed the corollary legal questions that arose in the wake of ratification. Those questions included the extent of the Nineteenth Amendment’s impact on state law regulating obstacles to voting like poll taxes, as well as political rights like jury service and holding public office. There was a similar absence of unified pressure on Congress to enact enforcement legislation under the Nineteenth Amendment, as well as an acrimonious split in the former suffrage movement over the Equal Rights Amendment (ERA).”).

[27] Id. at 146-154.

[28] Steve Kolbert, The Nineteenth Amendment Enforcement Power (But First, Which One is the Nineteenth

Amendment, Again?), 43 Fla. St. U. L. Rev. 507 (2017), https://ir.law.fsu.edu/lr/vol43/iss2/6 [https://perma.cc/7QKM-F2ET].

[29] Id. at 509.

[30] Id. at 518 (“According to a 2006 study by the Brennan Center for Justice, 7% of U.S. citizens lack ready access to citizenship documents, but ‘only 48% of voting-age women with ready access to their U.S. birth certificates have a birth certificate with [their] current legal name—and only 66% of voting-age women with ready access to any proof of citizenship have a document with [their] current legal name.’”)

[31] Id. at 528.

[32] Id. at 509-510.

[33] Id. at 510.

[34] Richard L. Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 Geo. L.J. 27, 46 (2020), https://ssrn.com/abstract=3501114 [https://perma.cc/7WJY-YTC7] (“In a famous 2002 article, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, Professor Reva Siegel argued that the passage of the Nineteenth Amendment strengthened the scope of equal protection rights contained in the earlier-ratified Fourteenth Amendment.” [citing Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harv. L. Rev. 947, 1022 (2002)]).

[35] Id. at 33.

[36] Id. at 27.

[37]  Brief of Appellees McCoy and Singleton at 4-5, Jones v. DeSantis, 4:19-cv-300-RH/MJF (N.D. Fla) (2020) https://www.splcenter.org/sites/default/files/documents/mccoy_appellees_opposition_to_appellants_interlocutory_appeal.pdf [https://perma.cc/R2E7-S7ST] (“Moreover, SB 7066 negatively impacts low-income women of color—particularly Black women—who suffer from the weighty intersection of race-, class-,and gender-based discrimination.”).

[38] Id. at 5.

[39] Id. at 27.

[40] Ko Bragg, Courts Asked to Analyze ‘Undue Burden’ of Florida’s Felony Disenfranchisement Law on Black Women, The 19th (Feb. 13, 2021), https://19thnews.org/2021/02/courts-analyze-undue-burden-floridas-felony-disenfranchisement-law-black-women/ [https://perma.cc/K669-4KC3].

[41] Jones v. DeSantis, 462 F. Supp. 3d 1196, 1239 (N.D. Fla. 2020), hearing en banc ordered sub nom. McCoy v. Governor of Fla., No. 20-12003-AA, 2020 WL 4012843 (11th Cir. 2020), rev’d and vacated sub nom. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020).

[42] Jones v. Governor of Fla., 975 F.3d 1016, 1040 (11th Cir. 2020).

[43] Appellants’ Brief at 3, McCoy v. DeSantis, 4:19-cv-300-RH-MJF (N.D. Fla) (Oct. 21, 2020), https://www.splcenter.org/sites/default/files/documents/mccoy_cross-appellants_opening_brief.pdf [https://perma.cc/4HPZ-VYST]. (“This cross-appeal raises two issues of first impression: (1) whether a Nineteenth Amendment claim requires proof of discriminatory intent and (2) whether a complete departure from the long-standing “undue burden” balancing test set forth in the Anderson-Burdick line of equal protection cases is justified when the particularized group of voters at issue are women.”)

[44] Id.

[45] Id.

[46] Monopoli, supra note 21, at 154.