"Voting is a privilege," Florida Gov. Ron DeSantis (R) tweeted last week in response to a Florida Supreme Court decision. The court interpreted part of a 2018 amendment to the Florida constitution as requiring the payment of court fines and fees before people with prior felony convictions can have their right to vote restored.
A state law already required payment, but a federal court blocked that law. An appeals court is now considering the case and heard arguments this week. In the meantime, critics say the DeSantis administration isn't doing enough to let citizens know who can register to vote.
In November 2018, nearly two-thirds of Floridians voted in favor of Amendment 4, which restored voting rights to nearly 1.5 million people with felony convictions. Before the amendment, Florida was home to nearly one-fourth of the total U.S. population that was disenfranchised because of previous criminal convictions.
The legislature passed a law in 2019 to implement the amendment, and this law required payment of fines, fees, and restitution before voting rights are restored. The amendment was described as a modern-day poll tax. Legislators argued that they were merely implementing the amendment, which restores voting rights after those with felony convictions "complete all terms of their sentence, including parole or probation."
Critics argued that DeSantis and the state Supreme Court have disregarded the intent of the voters who ratified the amendment. A June 2019 poll found that only 45 percent of respondents supported the state law requiring that people pay fines, fees, and restitution before they can vote. Other polls found more support for the law.
Supporters of Amendment 4 argued that the bill was unnecessary, because the amendment is "self-executing." After the law passed, groups began raising money to help pay off people's court costs. In some counties, judges and prosecutors have waived old court fees.
Voting rights groups filed four lawsuits challenging the law on behalf of citizens who owe court fees, and the cases were consolidated. In October, U.S. District Court Judge Robert Hinkle ruled that the law's requirement that people pay court fees, regardless of whether they are financially able to pay them, violates the U.S. Constitution. His ruling said the right to vote "cannot be made to depend on an individual's financial resources."
The state appealed Hinkle's ruling to the 11th U.S. Circuit Court of Appeals, which heard arguments on Jan. 28. The three-judge panel posed a hypothetical of two people, one wealthy and one not, who were convicted of the same crime. Only one of them could afford to regain their voting rights. Judge Lanier Anderson called it "punishment on the basis of poverty."
One of the plaintiffs, Rosemary McCoy, spoke after the argument and accused the state of trying to "take away my voice." McCoy said that "returning citizens" often face trouble finding a job after being incarcerated, which makes it difficult to pay off fines. Plaintiff Kelvin Jones owes more than $50,000 in fines, fees, and restitution.
Running out the clock?
Daniel Tilley of the ACLU of Florida said in an interview that the DeSantis administration is trying to use the litigation to "run out the clock" on implementing Amendment 4 before this year's election. Voters must register to vote by February 18 to participate in the primary election. Tilley worries the state isn't doing enough to tell people how to have their voting rights restored. "The governor has been all rhetoric and no action on this issue," he said.
Before Amendment 4, the governor had total discretion on whether to restore voting and other civil rights to people with felony convictions. Thousands of citizens, particularly people of color, had their requests to restore their rights denied by the previous Republican governor. The strict disenfranchisement rules were established in the 1868 Florida Constitution and persisted through Jim Crow, until the 2018 amendment.
When DeSantis signed the bill requiring payment, he called Amendment 4 a "mistake." The governor claimed that he supported Hinkle's ruling, but he appealed it to the 11th Circuit.
With the recent U.S. Senate confirmation of two Florida judges, the 11th Circuit now has a majority of Republican appointees. The court hears appeals from Alabama, Georgia, and Florida. "A very conservative 11th Circuit having control over voting rights cases is an important thing," said Eric Segall, a law professor at Georgia State University.
Trump recently nominated 38-year-old Andrew Brasher to a seat on the 11th Circuit. Alliance for Justice, a progressive judicial advocacy group, described Brasher's legal career as a "disturbing record of eroding the voting rights of persons of color." Brasher defended Alabama's system of disenfranchising people with felony convictions.
The 11th Circuit could rule later this year on the lawsuit challenging the disenfranchisement provision in Alabama's Constitution. The provision was added at the 1901 constitutional convention, which drafted a document intended "to establish white supremacy in this State."
Regardless of how the 11th Circuit rules on the Florida case, Judge Hinkle will preside over a trial that begins this spring. If the 11th Circuit doesn't decide soon, Hinkle's order blocking the state from denying re-enfranchisement because of an inability to pay would go into effect. This would ensure that no Florida citizen is denied the right to vote because they cannot afford to pay fines and fees.
During the trial, Hinkle will determine whether the state law violates several provisions of the U.S. Constitution. In their briefs, the DeSantis administration suggested that if the state law is struck down as unconstitutional, the federal courts may also have to strike down Amendment 4. Hinkle asked the parties to submit arguments on the issue.
Although the Florida Supreme Court interpreted the phrase "all terms of conditions" in the Amendment to include payment of court fines, the ruling didn't impact Hinkle's decision.
The parties to the federal lawsuit agreed at a hearing on Dec. 3 that the state Supreme Court's interpretation of a single phrase doesn't mean the entire amendment is a poll tax. And DeSantis' lawyer agreed that Amendment 4 being struck down as an unconstitutional poll tax would be an "absurd outcome."