As the state fails to act, a federal judge promises relief for felons unable to vote because of court debt

By: - May 6, 2020 6:55 pm
early voting booth

Voting booths.

At the conclusion of an eight-day trial over the constitutionality of a Florida law requiring former felons to pay all their court costs before they can vote, U.S. District Judge Robert Hinkle said Wednesday that he will help those too poor to pay their legal obligations.

Hinkle chided the Florida Department of State for failing to produce such a plan, even after he issued a preliminary injunction last October after finding that the 2019 state law did not address former felons who are “genuinely unable” to pay fines, fees, court costs, and restitution that are part of their sentences.

The U.S. Court of Appeals for the 11th Circuit upheld Hinkle’s ruling in February, saying the state law “punishes those who cannot pay more harshly than those who can — and does so by continuing to deny them access to the ballot box.”

“I don’t think I’m going to surprise you, I’m going to follow the 11th Circuit decision,” Hinkle told lawyers for the state and the civil rights groups that challenged the law as an unconstitutional “wealth test.”

The law was passed to implement Amendment 4, a state constitutional amendment approved by voters in 2018 that sought to restore voting rights for former felons, except those with murder and sex-crime convictions.

Mohammad Jazil, a lawyer representing Secretary of State Laurel Lee, said state elections officials have been working on a plan, which could include such things as former felons filing affidavits about their inability to pay or seeking an advisory opinion from the state. But he said the plan has not yet “crystallized.”

Jazil asked whether if Hinkle advances a plan the state have a chance to react to it — a comment that drew a strong response from the judge.

“So, you have filed hundreds of pages of briefs. You’ve had a preliminary injunction hearing, a summary judgment hearing, [eight] days of trial, and an opportunity to make closing arguments and that’s not due process? You need more time?” Hinkle said.

Hinkle said he will advance a plan that will “be a whole lot easier to administer than anything you’ve dealt with so far.”

“That may be a bit of a bold statement. And when I write it down, I may find it’s not as easy as I thought it might be. And I certainly don’t think it’s easy,” he said. “I hope it’s more administrable.”

Hinkle said that, when he issues his plan, he will give the state a chance to react and is open to amending it based on the state’s comments.

In their final arguments, lawyers for the civil rights groups raised a host of constitutional arguments against the 2019 law, including that the payment requirement violates the Equal Protection Clause in the 14th Amendment.

“The evidence from trial shows that Florida heaps insurmountable debt on returning citizens when it knows the overwhelming majority of them will be unable to pay,” said Julie Ebenstein, representing the American Civil Liberties Union.

Ebenstein cited testimony from Daniel Smith, a political scientist at the University of  Florida, who found some 774,000 former felons still owed financial obligations as part of their sentences.

Danielle Lang, representing the Campaign Legal Center, said whether the 2019 law constituted a “poll tax,” which is prohibited by the 24th Amendment, was “at the heart of this case.”

“The evidence shows what we have seen throughout every stage of these proceedings, which is that LFOs [legal financial obligations] are taxes. They go to fund the government,” she said.

Lang also said the payment obligation raises due process problems for the former felons, citing testimony that attempting to determine outstanding debt would involve multiple entities, ranging from local election supervisors to the state Division of Elections to court clerks to prosecutors and public defenders.

“Voters are sent in a vicious cycle where everyone disclaims the ability to tell them their eligibility and points to someone else,” Lang said. “All the while, the secretary of state has provided zero, zero guidance to anyone to help them decipher this maze.”

Nancy Abudu, representing the Southern Poverty Law Center, said the evidence underscored the impact of the debt obligation on poor minority women, citing data that showed former women prisoners are likely earn much less money when they are released compared to other former prisoners and non-prisoners.

“We are not expecting the court to solve all the social ills that exist in this society, but we are specifically asking the court to exercise its authority to block Senate Bill 7066 [the 2019 law] so that it doesn’t make those social ills even worse,” Abudu said.

Acknowledging the “urgency” of the matter, Hinkle said he would issue his ruling as quickly as possible, noting his decision would likely be appealed.

The timing of the ruling is also critical because Florida voters are preparing to go to the polls for an Aug. 18 primary election and a Nov. 3 general election, which will include the presidential contest. Voters must be registered for the primary election by July 20 and by Oct. 5 for the presidential race.

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Lloyd Dunkelberger
Lloyd Dunkelberger

Lloyd Dunkelberger has been covering Florida government for over three decades. He’s reported and edited in Tallahassee for the New York Times Regional Newspapers group, Florida Politics, and the News Service of Florida. He grew up in Jacksonville and Palm Beach County and got his journalism degree at the University of Florida.