Did Florida create an illegal poll tax in requiring felons to not just complete their sentences but also pay their fines and fees before having their voting rights restored? A federal judge ruled on Sunday that the requirement to pay the bill amounted to a “pay to vote” system that violated the civil rights of those ex-cons. For now, the ruling by Judge Robert Hinkle will open the door to potentially hundreds of thousands of new voters in November 2020 — theoretically, anyway.
In practice, more like November 2022:
A federal judge has gutted a Florida state law requiring felons to pay all court fines and fees before they can register to vote, clearing the way for thousands of Floridians to register in time for the November presidential election.
Republican lawmakers and Gov. Ron DeSantis (R) pushed the measure after Florida voters overwhelmingly approved a constitutional amendment in 2018 to expand voting rights to felons who have completed “all terms of their sentence including probation and parole.”
The law’s backers said it was necessary to clarify the amendment, while critics said Republicans were trying to limit the effects of what would have been the largest expansion of the state’s electorate since poll taxes and literacy tests were outlawed during the civil rights era.
Theoretically, though, this makes sense. A sentence can’t be complete while assessed fines and fees are left unpaid. That isn’t about paying to vote — it’s a requirement to close out the sentence that got assessed in the criminal conviction. In practice, however …
The law, critics said, had made it virtually impossible for most felons to register, either because of an inability to pay or because the state offered no way for them to know what they owed or whether they had already paid.
Aaaaaaaand that’s where the judge is … suddenly making sense:
“Surely very few Florida voters knew that every Florida felony conviction results in an order to pay hundreds of dollars in fees and costs intended to fund the government, even when the judge does not choose to impose a fine as part of the punishment and there is no victim to whom restitution is owed,” Judge Hinkle wrote in his 125-page opinion.
“Surely very few Florida voters knew that fees and costs were imposed regardless of ability to pay, that the overwhelming majority of felons who would otherwise be eligible to vote under Amendment 4 owed amounts they were unable to pay, and that the State had no ability to determine who owed how much.”
He upbraided Florida for failing to come up with a satisfactory way for felons to check how much they might owe or show the state that they could not afford to pay.
Well … yeah. If Florida has a system that has clear and accessible information as to the exact assessment still outstanding, then this requirement is no problem. In fact, it’s tough to understand why Florida wouldn’t have such a system in place. Failure to pay fines and fees can result in further incarceration. Shouldn’t that threat in itself force the state to provide such an accounting, even without the voting-rights restoration issue at hand now?
In this context, though, it sounds like the state is setting up a catch-22. You can’t vote until you pay, but you can’t pay because we don’t know what you owe. But now that we know you owe something, we may need to refer this for further investigation. At the very least, it looks like a way to ensure that most of the people whom voters intended to re-enfranchise remain locked out (the law excepted convicted murderers and sex offenders from re-enfranchisement). It’s an arbitrary exercise of power rather than a fair implementation of due process.
And it isn’t as if the judge didn’t offer a solution, of sorts. Theoretically, anyway:
The judge ordered the division of elections to issue a form with which felons might request an advisory opinion on their eligibility to vote. The felon would then be able to register to vote within 21 days unless the division finds that the applicant is ineligible.
Hinkle noted that the state would almost certainly appeal this decision rather than fix the problem. Even with this fix, though, the question of whether indigent Floridians would get locked out of voting forever remains. That is likely to make up a large portion of the estimated 774,000 former felons excluded by existing financial obligations. Even if Florida did have such a system in place, in practice it would still produce the same result, and it’s tough to imagine Hinkle signing off on it.
Will the appeal work? Maybe not even theoretically, as Hinkle explained in his ruling. His decision is based solidly on 11th Circuit precedent in Jones v Florida on similar grounds:
The United States Court of Appeals for the Eleventh Circuit affirmed, squarely holding that Florida cannot prevent an otherwise-eligible felon from voting just because the felon has failed to pay LFOs the felon is genuinely unable to pay. Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). This order of course follows the Eleventh Circuit’s decision—and would reach the same result anyway. …
The State went further in its appeal of the preliminary injunction, identifying additional interests allegedly served by the pay-to-vote system, including punishment, enforcing its laws, debt collection, and administrative convenience. But the Eleventh Circuit held they all fell short. The evidence now in the record after a full trial further support the Eleventh Circuit’s analysis.
The State has not identified any additional interests allegedly served by the pay-to-vote system. When reminded, late in closing argument at the end of the trial, that the State had identified interests on appeal but nothing more in this court, the State said only that it stood by whatever it said on appeal.80
Jones thus settles the question whether the pay-to-vote system, as applied to citizens who are genuinely unable to pay their LFOs, survives heightened scrutiny. It does not. The plaintiffs are entitled to prevail on their claim that they cannot be denied the right to vote based on failure to pay amounts they are genuinely unable to pay.
If Florida wants to overturn this, they will likely have to push it all the way to the Supreme Court — and even then, there’s no guarantee they will succeed. They can, however, almost certainly get delays while higher courts take up these questions. It might take a couple of more years to settle this, but Florida has low odds of winning this case while it can’t even make its own accounting transparent.