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May 24, 2020

Federal judge strikes down Florida's "unconstitutional pay-to-vote system" for former offenders

This Politico article reports on a big new ruling from Florida under the headline "Federal judge strikes down restrictions on Florida felon voting." Here are the basics:

A federal judge on Sunday dismantled Florida’s restrictive felon voting rights law in a ruling that could open the door to hundreds of thousands of new voters being added to rolls just ahead of the 2020 presidential election.  U.S. District Judge Robert Hinkle declared key portions of the state’s felon voting law unconstitutional, ordering the state to put in place a new process that would help people register to vote in the state.

Throughout his 125-page ruling, Hinkle chided the state for a “pay-to-vote” system that he said was Byzantine because, in some instances, former felons could not even figure how much money they owed.  “This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense,” the judge wrote.  “A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects,” he said.

Hinkle’s ruling could lead to a major addition to the state’s voting rolls just months before the election in the battleground state. President Donald Trump, who narrowly won the state four years ago, has made winning Florida a key part of his reelection strategy.  One study done by Daniel Smith, a University of Florida political professor, found that nearly 775,000 people with felony convictions have some sort of outstanding legal financial obligation.

The decision comes nearly a year after the Republican-controlled Florida Legislature passed the law that requires people with felony convictions to pay all outstanding court debts in order be eligible to vote.  Legislators passed the bill after voters approved Amendment 4 to the state constitution, which aimed to end the state’s lifetime ban on voting for most ex-felons.

Hinkle’s ruling did not completely strike down the law, but the judge asserted that requiring people with felony convictions to pay off costs and fees violated the U.S. Constitution’s ban on poll taxes.

The full 125-page ruling is available at this link, and here is how it gets started:

The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money.  Most of the citizens lack the financial resources to make the required payment.  Many do not know, and some will not be able to find out, how much they must pay.  For most, the required payment will consist only of charges the State imposed to fund government operations — taxes in substance though not in name.

The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote.  In the meantime, year after year, federal and state elections will pass.  The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.

This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense.  A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.

The United States Court of Appeals for the Eleventh Circuit has already ruled, in affirming a preliminary injunction in this very case, that the State cannot condition voting on payment of an amount a person is genuinely unable to pay.  See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).  Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger.  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.  This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.

May 24, 2020 at 10:22 PM | Permalink

Comments

Doug: This is a critical issue in Florida, and for the entire country, as the November 2020 election approaches. No American should lose sight of the fact that the outcome of the 2000 Presidential election, placing George W. Bush in the White House instead of Al Gore, was determined by 537 votes in Florida. At the time of the November 2000 election, there were about 800,000 former Florida felons who could not register to vote, due to Florida law at that time. Florida has since been changed by Amendment 4, which the voters adopted by more than 60% of the vote. It is widely believed that if those former Florida felons could have voted in 2000, Al Gore would have won the Presidential election, not G.W. Bush. After Amendment 4 was passed, clearing the way for the former felons to vote, the Florida Legislature attempted to impose financial payment requirements (fines, court costs and restitution) that were not included in the Amendment 4, which the voters approved. It is widely believed that the vast majority of former felons would register Democrat, and would vote for Democratic candidates, so the Republicans have been trying to use every road block and impediment they can find to stop them from registering to vote. This Judge's 125 opinion and order is of historical significance, and could determine the outcome of the November 2020 Presidential election. But stay tuned for an (expedited) appeal to the Eleventh Circuit in Atlanta.

Posted by: James Gormley | May 25, 2020 1:43:51 PM

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