Federal appeals court intervenes in Amendment 4 fight, casting doubt on felon re-enfranchisement

By: - July 2, 2020 1:51 pm

People march in Jacksonville to support Amendment 4 in 2018. Florida Rights Restoration Coalition photo.

A federal appeals court threw a bomb into preparations for Florida’s August primary and November general election this week when it blocked a lower court order that would have allowed thousands of former felons to participate in the voting.

The U.S. Court of Appeals for the 11th Circuit, by a vote of 10 of its 12 judges, said that it would take up the matter “en banc” — or as a committee of the whole — next month. In the meantime, it stayed enforcement of U.S. District Court Judge Robert Hinkle’s May ruling clearing the way for many former felons to register and vote.

The move blew up local supervisors of elections’ preparations for felon enfranchisement.

“It’s becoming, I think, probably very confusing for people who are trying to decide whether they can get registered to vote or not,” said Mark Earley, supervisor of elections for Leon County.

“It’s a major disruption,” he said.

Local officials were trying to figure out what’s going on. An unknown number of former offenders have registered to vote under guidelines Hinkle established, Earley said.

“Where do they stand now? Do they have to unregister?” he wondered. “There’s no way for us to just take people back off the rolls.”

The 11th Circuit reportedly set a hearing date for Aug. 11 — a week before the Aug. 18 primaries and well after the July 20 deadline to register to participate.

Earley advises people who believe they’ve satisfied all of the law’s requirements to go ahead and register to vote. And for people who registered relying on Hinkle’s ruling, “I would not fear for any prosecution, because they were acting under the guidelines in place at the time,” he said.

“The worst that could happen is that they would be taken off the rolls at some point, based upon a review by the state,” he said. “But I don’t expect that that’s going to get ramped up anytime soon.”

The case has bounced around the state and federal courts for months. The Florida Supreme Court issued an advisory opinion in January supporting the position of Gov. Ron DeSantis on legislation implementing 2018’s constitutional Amendment 4, which had been overwhelmingly approved by the voters to restore voting rights to people convicted of felonies.

That position is that they first must pay any “legal financial obligations,” defined as fines, court fees, and restitution.

The state has done less well in federal court. Hinkle, of Tallahassee, issued a temporary injunction against enforcing the law in October pending a trial on its merits. The state appealed to a three-judge panel of the 11th Circuit, which came down hard against the state and refused to overrule Hinkle.

In his ruling on the merits, Hinkle declared that the law violated the U.S. Constitution because it predicated voting rights on the ability to pay so-called “legal financial obligations” regardless of whether the person had the means to pay.

He didn’t actually call the financial obligations a “poll tax,” but he concluded the result was the same.

The judge also criticized the state’s failure to set up a system for screening financial obligations, many arising from convictions years old and poorly documented. According to testimony before Hinkle, the state had an 85,000-person backlog of former felons seeking to recover their voting rights but no good way to review their circumstances.

DeSantis vowed to appeal Hinkle’s ruling, saying at the time, “No other court in the country has held this.” (That wasn’t strictly true — see the 11th Circuit three-judge panel ruling.)

Among the appellate judges who voted to hear the case were Barbara Lagoa and Robert Luck, who were appointed to the Florida Supreme Court by DeSantis and soon after were elevated to the federal appeals court. Two judges recused themselves from the decision.

Advocates for felon re-enfranchisement vowed to fight on.

“The court of appeals put a temporary hold on our latest victory. But the previous appellate decision still stands and the state should adhere to it. Our fight continues,” said American Civil Liberties Union Legal Director Daniel Tilley in a written statement Thursday.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.