The saga of the restoration of the voting rights of Florida ex-felons continues, but it may be nearing an end. The crux of Federal District Judge Robert Hinkle’s May 24 opinion in Jones v. DeSantis, about the legislature’s attempts to overrule the voter-approved Amendment 4 to the Florida constitution:
“This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.”
Which is to say, for those without money, Florida’s latest poll tax has been struck down.
I’ve been writing about the theory and politics of felon disenfranchisement for a while. Nowhere has the issue been more consequential nor litigated than in Florida, which since Bush v. Gore has been the ground zero of voter suppression. Governors Jeb Bush and Charlie Crist eased franchise restoration; Governor Rick Scott squelched it. Then the citizens got involved.
In 2018 Florida voters, by nearly 2-1, passed an amendment to the state constitution. Under Amendment 4: “[A]ny disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” (Murder and felony sexual offense were excluded.)
Despite the mandate, Florida’s GOP-dominated legislature set about to undo it, passing on party-line votes in the House and Senate SB7066, which defined “all terms of sentence” to include “any portion of a sentence that is contained in the four corners of the sentencing document,” including the payment of court-imposed fines, fees and restitution.
What’s at stake? As of 2016, nearly 1.5 million ex-felons in Florida couldn’t vote. At issue are those who could get the vote but for SB7066. That is 774,000, estimates the Campaign Legal Center, which brought one of five federal lawsuits in the days after Governor Ron DeSantis signed the bill last June.
In August DeSantis requested an advisory opinion from the state supreme court on the “legal financial obligations” (LFOs) added by SB7066. The briefs contested the meaning of the “four corners” and the voters’ intent.
(Note: In Florida and elsewhere, hundreds of dollars in court fees (plus interest) are routinely imposed as a means of funding government that have zero to do with the crime. If you’ve lived where court fees are added to the price of contesting a traffic ticket, you get this.)
In January the Florida Supreme Court opined that conditioning of the right to vote on payment of costs was consistent with Amendment 4. Advised the court, “[T]he phrase ‘all terms of sentence’ . . . has an ordinary meaning that the voters would have understood to refer not only to durational periods but also to all LFOs.” (The governor didn’t ask what “completion” might mean, and the court didn’t say.)
Dissenters included the Harvard Law Review:
[The supreme court] improperly relied on tools of interpretation adapted to understand legislation drafted and passed by professional legislators, not ordinary citizens. Rather than focusing on what the plain meaning of “completion of all terms of sentence including parole and probation” would be to an ordinary citizen, the court turned to technical tools like the Florida Rules of Criminal Procedure and Black’s Law Dictionary to define “sentence.” In so doing, the court ignored the noscitur a sociis canon [in legalese, the context] and the reality that laypersons are likely to think of penalties related to time and confinement when the word “sentence” is placed in the context of “parole” and “probation” – not court fees.
Meanwhile, the federal lawsuits, consolidated as Jones v. DeSantis, contended that SB7066 violated the First, 14th (due process and equal protection) and 24th (poll tax) amendments to the Constitution. In October Judge Hinkle issued a preliminary injunction against enforcement of SB7066, finding that DeSantis was unlikely to win on the merits.
DeSantis appealed, and in February the 11th Circuit upheld Hinkle’s preliminary injunction. It reasoned that Florida was imposing a condition based not on the crime but the ex-felon’s ability to pay. That, the Circuit said, violated Equal Protection: two identically situated felons who completed their sentences could not have their right to vote determined by their ability to pay money imposed at sentencing, and that amounted to a poll tax.
On May 6, at the conclusion of the eight-day bench trial (conducted by conference call), Hinkle surprised no one when he announced that the state had erred. The evidence showed that Florida has no way to track whether ex-felons have costs within the “four corners” or have paid them. The record reads like Kafka. Wrote the judge: “The State has shown a staggering inability to administer the pay-to-vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.”
Hinkle’s 125-page opinion incorporates the 11th Circuit’s reasoning. Under his order, the pay-to-vote system is unconstitutional:
- for “individuals who are otherwise eligible to vote but are genuinely unable to pay”
- to the extent that “the amounts that are unknown and cannot be determined with diligence”
- because the costs “are, in substance, taxes”
But for those who can pay, the requirement to pay a “determinable amount” is not unconstitutional. (We’ll see whether Florida can determine amounts.) Thus Hinkle didn’t void the entire law.
The order establishes procedures by which ex-felons can seek information on any fees owed and, absent a supported statement from election officials, register to vote in 21 days.
“At least on its face, Amendment 4 was self-executing,” Hinkle wrote. But if the legislature’s intent to disenfranchise were ambiguous, the state argued that if the court were to strike the LFO condition, then the rest of Amendment 4 should be voided. Hinkle responded:
The State makes the rather remarkable assertion that if it cannot prevent people who are unable to pay LFOs from voting, then all of Amendment 4 must fall – that even felons who have served all their time, are off supervision, and have paid all amounts they owe cannot vote. This is a breathtaking attack on the will of the Florida voters who adopted Amendment 4.
Breathtaking. Unless one has reviewed 150 years of disenfranchisement efforts, as I did in my letter to Governor Scott five years ago. The state may declare a cease-fire, or it may continue this particular battle in a long war. It’s up to Governor DeSantis, but in this skirmish he had no bullets.