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Florida Supreme Court casts critical eye on Amendment 4

Justices wondered why advocates have changed their position on the amendment, which restored the right to vote to felons.
SCOTT KEELER   |   Times Gov. Rick Scott should not be allowed to pack the Florida Supreme Court by appointing three new justices hours before his successor is scheduled to take office.
SCOTT KEELER | Times Gov. Rick Scott should not be allowed to pack the Florida Supreme Court by appointing three new justices hours before his successor is scheduled to take office.
Published Nov. 6, 2019
Updated Nov. 6, 2019

Florida Supreme Court justices cast a critical eye on Amendment 4 on Wednesday, posing tough questions about supporters’ past statements about whether felons were required to pay back all court fees, fines and restitution before being allowed to register to vote.

The justices were responding to an unusual request in August from Gov. Ron DeSantis, who asked them to clarify a narrow, but contentious, issue surrounding the historic amendment.

Amendment 4, passed by nearly two-thirds of voters last year, restored the right to vote to felons who completed “all terms of sentence.” But do “all terms” include court fees, fines and restitution commonly tacked on to a felons’ prison or probation sentence?

The amendment did not say. Justices on Wednesday heard arguments from attorneys representing DeSantis and other lawmakers who argued that it did require such payments. The seven justices, three of whom were appointed by DeSantis earlier this year, appeared open to their argument.

RELATED STORY: Being poor shouldn’t stop Florida felons from voting, judge rules in Amendment 4 case

Then, an attorney with the American Civil Liberties Union of Florida agreed, saying that “all terms” included the financial obligations — but with a catch.

ACLU of Florida attorney Anton Marino said that those financial terms expired as soon as a felon’s probation or parole ran out, a new argument that the ACLU did not make when lawmakers were debating Amendment 4 this session.

While on probation, felons are typically required to make payments toward those fees. Once they’re off probation, however, those payments are usually converted to civil liens, meaning what they owe is no longer part of the defendants’ criminal case.

“It does not require the payment of all legal financial obligations, because doing so would mean every person unable to pay is serving a life sentence,” Marino said.

Marino called the governor’s position “absurd,” and noted that most felons are too poor to immediately pay back their financial obligations, keeping them off the voter rolls.

“It cannot be that more than four out of five returning citizens is serving a life sentence," Marino said.

It was a nuance that didn’t appear to persuade justices.

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

Justice Barbara Lagoa cited a letter co-signed in December by the American Civil Liberties Union to Florida’s Secretary of State, who oversees the state’s elections system. The letter said that “'all terms of sentence’ includes any period of incarceration, probation, parole and financial obligations imposed as part of an individual’s sentence.”

The letter makes no reference to Marino’s distinction: That those terms expire when a felon is no longer on parole or probation.

“It says that completion of all terms of sentence included financial obligations imposed as part of a sentence,” Justice Barbara Lagoa said. “How can you now take the opposite view?”

Replying to Lagoa, Molly Danahy, an attorney representing one of the felons suing the state over its interpretation of Amendment 4, reiterated Marino’s argument.

“That’s not what the letter says,” Justice Carlos Muñiz noted.

Danahy also argued that the court did not have the ability to even take up DeSantis’ request for an opinion, in part because the court already took up Amendment 4 when they approved it for last year’s ballot. Justices appeared to disagree.

Afterward, ACLU of Florida Legal Director Daniel Tilley called DeSantis’ request for a Supreme Court opinion a “publicity stunt” meant to reaffirm the governor’s stance on Amendment 4.

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

“He’s asked a question he does not need the answer to,” Tilley said. "The answer he’s seeking is something that he sought successfully in the passage of SB 7066.”

DeSantis signed off on Senate Bill 7066 in July, which required felons to pay all debts before voting. Critics called it a “poll tax.” A federal judge last month said it created an “administrative nightmare,” since no one in the state tracks restitution, and felons have no easy way to determine whether they owe court fees and fines.

That judge, U.S. District Judge Robert Hinkle, is overseeing a challenge to SB 7066 by 17 felons who weren’t allowed to vote because they still owed fines, fees or restitution.

Last month, Hinkle ruled in a preliminary injunction that those felons must be allowed to vote, and that the state needs to come up with a path to vote for felons who are too poor to pay their financial obligations. State lawmakers are already crafting tweaks to the law for next year’s legislative session.

That case is set to go to trial in April. The justices are expected to give their opinion well before then.