After judge’s ‘spanking,’ lawmakers will tweak Amendment 4 bill next session

“I think some of the points of the judge were well-made," Sen. Jeff Brandes said.
Rep. Jamie Grant, R- Tampa and Senator Jeff Brandes, R- St. Petersburg listen to Amendment 4 debate in the Florida Senate on Thursday. [SCOTT KEELER   |   Times]
Rep. Jamie Grant, R- Tampa and Senator Jeff Brandes, R- St. Petersburg listen to Amendment 4 debate in the Florida Senate on Thursday. [SCOTT KEELER | Times] [ SCOTT KEELER | Tampa Bay Times ]
Published Oct. 17, 2019

Two key Republican lawmakers said they’ll address some of the problems with Amendment 4 that were criticized by a federal judge last week.

Rep. Jamie Grant, R-Tampa, said U.S. Dist’ct Judge Robert Hinkle gave the Legislature a “spanking" for creating a confusing voter registration form and for not creating an easy way for felons to check whether they’re eligible to vote.

And Hinkle said that the Legislature, not judges, should decide how to fix the process.

Both Grant and his counterpart in the Senate, Sen. Jeff Brandes, R-St. Petersburg, heard the message and are planning on passing a bill to clean up the process during the next legislative session, which begins in January.

“I think some of the points of the judge were well-made, and we should look to address those,” Brandes said.

The two lawmakers were the leaders behind the bill this year that national critics called a “poll tax” for undercutting Amendment 4, the historic amendment that gave felons in Florida the right to vote if they completed “all terms of sentence.”

Grant’s bill, which became law in July, required felons to pay back all court fees, fines and restitution to victims before being allowed to register to vote. They justified that condition based on what an attorney hired by Amendment 4′s creators said was intended by the ballot language.

RELATED: Lawmakers made Amendment 4 an ‘administrative nightmare,’ federal judge says

But that condition will likely prevent hundreds of thousands of felons from being eligible to vote. Brandes last year pushed for a bill that allowed felons to vote if their financial obligations were converted to a civil lien, which usually happens, but he ended up supporting Grant’s bill.

Their bill was quickly challenged by the American Civil Liberties Union and other groups, who argued it was unconstitutional.

Last week, Hinkle heard arguments that the legislation should be stopped until the case goes to trial in April. He did not issue a ruling, but he called the process for felons “an administrative nightmare,” and he raised several critical constitutional questions.

A 2005 11th Circuit U.S. Court of Appeals opinion, for example, that stated that access to voting “cannot be made to depend on an individual’s financial resources.”

And the 24th Amendment states that that voting in federal elections “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

RELATED: What now? Amendment 4, felon voting move to Florida courts

Hinkle did not call it a “poll tax,” but he asked lawyers for Laurel Lee, Florida’s Secretary of State who oversees the elections division, whether requiring felons to pay court fees constituted an “other tax.” Court fees could be considered a tax because they’re used to subsidize the state’s court system, he said.

Hinkle reserved particular ire over the changes lawmakers made to the state’s voter registration form, wondering whether lawmakers intentionally changed it to discourage felons from registering.

The new registration form requires Floridians to check one of three boxes when they register: (a) that they’ve never been convicted of a felony; (b) if they have been convicted of a felony, to affirm they’ve had their right to vote restored by the state’s clemency board; (c) if they have been convicted of a felony, to affirm they’ve had their right to vote restored under “s. 4 , Art. VI of the State Constitution" — in other words, Amendment 4.

Knowingly checking the wrong box could lead to a third-degree felony charge.

RELATED: Florida’s Amendment 4 muddled by confusing voter forms

Both Grant and Brandes said they will change the form, likely eliminating the third check box and reverting to the old form, which simply required applicants to say whether they were a felon who had their rights restored.

They denied that they were trying to make the form confusing. Grant, who discarded the language from his bill only to see it revived in the Senate, said they were simply trying to flag Amendment 4 cases for elections supervisors.

“The reason the third box came up as an idea was, how do I tell government, ‘This is an Amendment 4 case. Get on it. Do what you need to give this person an answer quickly and efficiently?’” he said.

Even with that fix, felons have no easy way to determine if they’re eligible to vote. Clerks of court are unable to quickly confirm whether some felons have paid back all their fees, particularly for old cases.

Grant said he wants to require next year that that supervisors be able to tell an applicant by 2022, in real time, whether or not they’re eligible, and if they’re not, where and how to become eligible.

RELATED: Amendment 4 will likely cost ‘millions’ to carry out. Here’s why.

But what else they might do is dependent on what Hinkle decides and an upcoming Florida Supreme Court advisory opinion on Amendment 4.

If Hinkle decides that court fees are indeed a tax, both Brandes and Grant said it would need to be addressed in their bills.

“I think we have to wait for the courts to come back and provide some additional clarity,” Brandes said.

Although Brandes said the bill wasn’t exactly what he wanted, he said it’s given the Legislature “a structure and form to build on.”

“What would have been a disaster would have been 67 different counties interpreting (Amendment 4) 67 different ways,” he said.