By John Haughey
The Center Square
May 26, 2020
Florida’s 2019 law requiring felons to pay court fees, fines and restitution before being eligible to vote has been struck down.
U.S. District Judge Robert Hinkle’s decision to invalidate Senate Bill 7066 after an eight-day trial that concluded May 6 was expected, but its length – 125 pages – and its Sunday night release came as a Memorial Day weekend jolt.
The state is expected to appeal to the 11th U.S. Circuit Court of Appeals but, without an injunction, an estimated 774,000 felons are now potentially eligible to register and vote in upcoming 2020 elections.
An 11th U.S. Circuit Court panel has already denied a previous request by the state to prohibit felons from voting while its appeal is considered.
Hinkle called the law, adopted by the Republican-controlled legislature, a “pay-to-vote system” that imposes “a tax by any other name. The requirement to pay fees and costs as a condition of voting is unconstitutional because they are, in substance, taxes.
His ruling requires the state’s Division of Elections (DOE) to ascertain how much a felon owes within 21 days of a status determination request. If the DOE cannot do so within that timeframe, it cannot bar the felon from voting, Hinkle wrote.
“This order holds that the state can condition voting on payment of fines and restitution that a person is able to pay,” Hinkle wrote, “but cannot condition voting on payment of amounts a person is unable to pay.”
During the trial, Hinkle was critical of the state’s inability to ascertain how much restitution or fines many owe, especially those convicted decades ago, and of the state’s failure to develop a process for doing so months after he requested they do so.
“That the director of the Division of Elections cannot say who is eligible makes clear that some voters also will not know,” Hinkle wrote. “In most cases, the (DOE) will need to do nothing more … than review the judgment to confirm there is no fine or restitution,” he wrote. “In the remaining cases – the cases with a fine or restitution – the overwhelming majority of felons will be unable to pay.”
SB 7066 was adopted in 2019 as “enacting legislation” after nearly 65 percent of state voters approved Amendment 4 in November 2018. The measure restored voting rights for felons after completing sentences, excluding those convicted of murder and sexual assault.
Five challenges to the law were filed on behalf of 17 felons by the American Civil Liberties Union of Florida, NAACP Legal Defense & Educational Fund and the Brennan Center for Justice, among others.
In February, an 11th U.S. Circuit Court panel unanimously upheld Hinkle’s October ruling that SB 7066 unconstitutionally denies the right to vote to felons “genuinely unable” to pay court costs.
The panel also upheld Hinkle’s injunction preventing the state from barring the 17 plaintiffs from voting. He has since granted class certification for one consolidated case, Jones v. DeSantis, meaning with his ruling, about 774,000 of the state’s 1 million felons can vote in 2020 elections.
Brennan Center for Justice Director Myrna Perez said the ruling upheld all four of plaintiffs’ constitutional arguments.
“We won our constitutional right to ‘vote claim.’ Individuals genuinely unable to pay the required amount, but are otherwise eligible to vote, must not be barred from voting,” she said in a tweet. ”We won a National Voter Registration Act claim. The state’s voter registration form violated the act.
“We won our due process claim. The requirement to pay amounts that are unknown and cannot be determined … is an unconstitutional condition of voting,” Perez continued. “We won our 24th Amendment claim. Fees and costs from a criminal conviction are impermissible taxes on voting.”
Of course, none of this would be an issue if legilsator had listened to the REPUBLICAN president of the Florida Senate who stated the Constitutional amendment was “self implementing.” In other words no legislative action was needed. Also, Proposition 4 in 2018 did not authorize the state legislature to consider implementing legislation.