ATLANTA — Three federal judges hearing a legal challenge to a Florida measure allowing felons to vote asked tough questions of the attorney for Gov. Ron DeSantis on Tuesday, repeatedly asking about the fairness of a subsequent bill that levied what critics called a “poll tax.”
The questioning by the judges for the U.S. Court of Appeals for the 11th Circuit in Atlanta went to the heart of the battle over Amendment 4, which voters passed in 2018. The justices appeared critical of the requirement passed by the Legislature last year that felons pay back all court fees, fines and restitution to victims before being allowed to vote.
The tacked-on legislative requirement will likely prevent hundreds of thousands of felons from voting because they can’t afford to immediately pay back what is often $500 or more in fees.
The judges sharply questioned DeSantis‘ attorney Pete Patterson about how the law essentially creates two classes of felons: those who can afford to pay — and those who can’t.
“Isn’t it punitive to say, ‘I will re-enfranchise this group, but not re-enfranchise this group?’” Judge Stanley Marcus asked.
Marcus was U.S. attorney in Miami from 1982-85 and a federal judge in Florida until 1997 when he was named to the Court of Appeals.
Patterson responded that when 64.5 percent of Florida voters approved Amendment 4, the measure restored the right to vote to nearly all felons who completed “all terms of sentence,” which he said included the financial obligations.
Judge Lanier Anderson noted that under Patterson’s and the bill’s interpretation of Amendment 4, two felons could be receive the exact same punishment for the exact same crime, yet one might vote before the other if he has more money.
“It’s precisely the same situation, except for punishment on the basis of poverty,” Anderson said.
“In one case, justice has been done,” Patterson responded. “In the other case, it has not.”
The court was hearing an appeal from DeSantis, who opposed Amendment 4, and Secretary of State Laurel Lee, who hoped to stop a U.S. district judge’s preliminary injunction in October.
That judge, Robert Hinkle, ruled that state officials must allow 17 felons who sued the state be allowed to register to vote.
Patterson told the appellate judges that allowing the 17 to vote when they had not fulfilled “all terms of sentence“ would cause an “irreparable harm” to the state and to other voters.
The judges are expected to rule in the coming weeks on whether to overturn Hinkle’s injunction.
Julie Ebenstein, a senior attorney with the American Civil Liberties Union, said she did not want to predict how the appellate judges would rule. But she noted the sharp line of questioning.
“The judges seemed very concerned about the irrationality of preventing someone from voting on the basis of their lack of wealth, when they were unable to pay,” Ebenstein said.
RELATED: Two libertarian groups slam Florida Republicans’ Amendment 4 bill
Amendment 4 overturned Florida’s 150-year-old law that banned felons from voting. The amendment restored the right to vote to nearly all felons who completed “all terms of sentence, including parole or probation.”
The historic amendment was celebrated as the nation’s greatest expansion of voting rights in decades, with up to 1.4 million felons believed to be enfranchised. Florida was one of just a handful of states that had not repealed its Jim Crow-era laws meant to keep black Americans from voting.
But almost as quickly, Amendment 4 became mired in confusion and debate, partly of its creators’ own doing.
At DeSantis’ urging, GOP lawmakers passed a law months later that applied some of the strictest terms possible to the amendment.
The resulting law, Senate Bill 7066, returned the right to vote only for those felons who were able to first pay all court fees, fines and restitution to victims. Other states allow felons to vote as they’re paying those fees over time.
RELATED: Lawmakers made Amendment 4 an ‘administrative nightmare,’ federal judge says
For at least hundreds of thousands of felons, the new restrictions meant they would not be able to vote for years, if ever. Court fees often reach $1,000 or more, a considerable sum for felons who already have trouble finding work.
Court fines can be tens of thousands of dollars. And one felon told lawmakers that she owed $59 million in restitution to insurance companies, almost certainly guaranteeing she’ll never be able to vote.
Republican lawmakers were denounced nationally for creating a “poll tax,“ but they justified the harsh terms in the bill by citing the words of the amendment’s own creators.
University of Florida attorney Jon Mills, who co-wrote the amendment, told the Supreme Court that “all terms” included financial obligations. The amendment did not define “all terms.”
Earlier this month, the Florida Supreme Court agreed that “all terms” included the financial obligations.
Civil rights groups sued as soon as Senate Bill 7066 became law, arguing that it was unconstitutional. In October, Hinkle wrote that he also agreed that “all terms” included the financial obligations.
RELATED: She owes $59 million. Should she be allowed to vote under Amendment 4?
However, citing an 11th U.S. Circuit Court opinion signed by eight judges, he wrote that Florida can’t stop people from voting just because they’re too poor to vote. Hinkle concluded the felons were unable to pay. One of them owed $50,000 in fines, for example.
“Florida ... cannot deny restoration of a felon’s right to vote solely because the felon does not have the financial resources to pay the other financial obligations,” Hinkle wrote.
Hinkle has not ruled on the constitutionality of Senate Bill 7066 itself. It’s set to go to trial in his courtroom in Tallahassee in April.
Patterson argued Tuesday that one of the reasons for the bill was to incentivize felons to repay their debts. But judges noted that many felons simply cannot afford to pay and likely never will.
“You don’t get blood out of a stone,” Anderson said.
RELATED: Amendment 4 study: Vast majority of Florida felons still owe money while race gap persists
The judges also had several questions for attorneys on both sides about how many felons cannot afford to pay back their debts. The state has no definite figures, but a preliminary study by University of Florida professor Dan Smith estimated that 80 percent of felons had not paid off their court obligations.
In October, Hinkle said lawmakers created an “administrative nightmare” with their bill, and he urged them to fix it this legislative session, which ends weeks before the trial.
Felons have no easy way to see if they still owe court financial obligations handed down when they were sentenced. No local or state entity in the state tracks restitution.
RELATED: Being poor shouldn’t stop Florida felons from voting, judge rules in Amendment 4 case
GOP lawmakers did include one way for felons to seek relief under Senate Bill 7066: They could ask a judge to convert their financial obligations to community service hours, which are typically converted at $10 per hour in Florida state courts. Such relief is not available to anyone convicted of a federal crime.
But Hinkle in October scoffed at the idea during a court hearing last year.
“If you had a $25,000 fine in a drug case, nobody’s going to work that off through community service hours,” he told lawyers for the state.
Hinkle said lawmakers could change their bill to make it more generous to felons, and the lawmakers who sponsored SB 7066 said they will make “tweaks” this session.
Correction: The court handling the appeal of an injunction over Amendment 4 is the U.S. Court of Appeals for the 11th Circuit. A Wednesday story incorrectly named the court.