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Amendment 4 constitutional? Judge wonders out loud during voting rights hearing

U.S. District Judge Robert Hinkle said he wants both sides to address an issue that hasn’t been dealt with in court filings: whether the amendment itself is unconstitutional, and what it would mean if it is.
[ROBERT BURKE | Tampa Tribune]
Published Aug. 16

A federal judge added a new twist Thursday in the legal battle over whether convicted felons who’ve served their time behind bars should be required to pay court-ordered financial obligations before voting rights are restored.

Plaintiffs in the case are challenging a state law that carries out a constitutional amendment granting voting rights to felons “who have completed all terms of their sentence, including parole or probation.” The amendment, approved by voters in November, excluded people “convicted of murder or a felony sexual offense.”

Under a measure approved by the Republican-dominated Legislature this spring and signed into law by Gov. Ron DeSantis, felons have to pay all “financial obligations” ordered by courts as part of sentencing --- including fees, fines and restitution — to be eligible to have their voting rights restored.

Voting- and civil-rights groups who filed the lawsuit allege that hinging the right to vote on finances amounts to an unconstitutional “poll tax” and is a vestige of Jim Crow-era policies aimed at preventing black voters from participating in elections.

But during a telephone hearing Thursday, U.S. District Judge Robert Hinkle said he wants both sides to address an issue that hasn’t been dealt with in court filings: whether the amendment itself is unconstitutional, and what it would mean if it is.

The law passed this spring by the Legislature “makes clear that a plaintiff cannot vote until the plaintiff has satisfied all the financial obligations,” Hinkle said during the hour-long hearing.

“If it should turn out that the Florida constitutional provision, Amendment 4, also provides that a plaintiff cannot vote unless the plaintiff satisfies all the financial obligations, then the question becomes, what happens if that’s unconstitutional?” the judge said.

Plaintiffs maintain that about 1.4 million Floridians have been convicted of felonies but are no longer incarcerated. The requirement to pay financial obligations would prevent about 80 percent of them from having their voting rights automatically restored, the lawyers argued.

While offering myriad reasons why the financial-obligations requirement runs afoul of the U.S. Constitution, the plaintiffs’ lawyers have focused solely on the state law and avoided consideration about whether those complaints mirror concerns about Amendment 4.

But Hinkle instructed them to tackle the issue by Aug. 29.

“If the plaintiffs are correct that requiring felons to satisfy the financial obligations is unconstitutional as applied to 80 percent of the otherwise eligible felons, does that mean that the financial obligation requirement should essentially be severed from Amendment 4, at least as applied to that 80 percent, or does it mean that Amendment 4 is unconstitutional and we’re back where we were before it was passed?” Hinkle asked lawyers Wednesday. “Nobody’s raised that, but it seems to me to be a question that at some point has got to be addressed.”

Voting-rights advocates launched the effort to change the Florida Constitution because the state’s restoration-of-rights process has been cumbersome, often taking years to navigate.

Republican lawmakers said they needed to pass legislation this spring to carry out details of the constitutional amendment, That prompted a highly contentious debate during the legislative session, which was followed by the voting- and civil-rights groups going to federal court.

GOP lawmakers and attorneys representing the DeSantis administration defend the law, maintaining that it is more permissive than the language of the constitutional amendment.

DeSantis and Laurel Lee, appointed by the governor as secretary of state early this year, have asked Hinkle to toss the lawsuit, arguing in part that it belongs in state and not federal court.

In a motion to dismiss filed this month, lawyers for the state wrote that, even if the newly passed law is struck down, Florida felons would still be unable to vote because Amendment 4’s “use of the phrase ‘all terms of sentence’ would serve as a bar to relief even if the statute being challenged was found unconstitutional.”

But Hinkle on Wednesday said he was “not impressed” by that argument.

“I’m not worried about the argument that, well you wouldn’t be able to vote anyway under the Florida Constitution,” he told the lawyers.

Plaintiffs have also argued that the law is unconstitutional because the state lacks a single centralized database where felons, referred to as “returning citizens,” can find out if they have outstanding financial obligations. Local databases maintained by county clerks have “inconsistent, incomplete and inaccurate” information, the plaintiffs’ lawyers wrote this month.

Hinkle set an Oct. 7 hearing on the plaintiffs’ request for a preliminary injunction to block the law and suggested it “might be helpful” to have a witness “who really knows how this stuff works,” such as a county clerk of court.

The judge said he routinely sees records related to Florida convictions, which must be taken into account when sentencing defendants in federal court.

The ability of court officers responsible for compiling the documents to obtain accurate information is hit and miss, Hinkle indicated.

“Sometimes we get a one-page sheet that’s a little bit hard to figure out,” he said, adding it “might very well be helpful to have a good description of what is and is not available, and how one would determine who is eligible to vote and who is not.”

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