Limits on Florida’s Amendment 4 are unconstitutional, federal panel rules

The ruling, which was expected, sets up a legal fight that could lead to the U.S. Supreme Court.
Protesters gathered outside the federal courthouse in Tallahassee on Monday, Oct. 7, 2019, while a federal judge heard arguments for an against the the Legislature's bill implementing Amendment 4.
Protesters gathered outside the federal courthouse in Tallahassee on Monday, Oct. 7, 2019, while a federal judge heard arguments for an against the the Legislature's bill implementing Amendment 4. [ LAWRENCE MOWER | Times (2019) ]
Published Feb. 19, 2020|Updated Feb. 19, 2020

TALLAHASSEE — A federal appeals court ruled Wednesday it was unconstitutional to force Florida felons to first pay off their financial obligations before registering to vote, siding against state Republican lawmakers who imposed the restriction last year.

The ruling by three judges from the U.S. Court of Appeals for 11th Circuit in Atlanta applies only to the 17 felons who sued the state, claiming they were too poor to pay back all fines, fees and restitution to victims before voting.

Despite its narrowness, the ruling was an unmistakable victory for supporters of Amendment 4, which passed by nearly two thirds of Florida voters in 2018, ostensibly restoring the right to vote to nearly all felons who completed “all terms of sentence,” the meaning of which has been hotly contested.

“This ruling recognizes the gravity of elected officials trying to circumvent Amendment 4 to create roadblocks to voting based on wealth,” said Julie Ebenstein, one of the lawyers for the American Civil Liberties Union representing several plaintiffs, in a statement.

Gov. Ron DeSantis, who opposed Amendment 4, signed a bill into law last year defining “all terms” to include all financial obligations, and the Florida Supreme Court recently agreed with that definition.


But that requirement violates the Equal Protection Clause of the Fourteenth Amendment, the judges wrote Wednesday.

In their opinion, judges Lanier Anderson, Stanley Marcus and Barbara Rothstein added that it was “undeniable” that the requirement punished poor felons, while wealthier felons wouldn’t be similarly denied the opportunity to vote because they can afford to pay their obligations.

“Here, these plaintiffs are punished more harshly than those who committed precisely the same crime — by having their right to vote taken from them likely for their entire lives,” the judges wrote. “And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth.”

DeSantis’ spokeswoman, Helen Ferré, wrote on Twitter that the governor disagreed with the decision and would appeal it to all of the judges on 11th Circuit appellate court.

The ruling, in one of the most high-profile voting rights cases in the nation, is a setback for DeSantis and the GOP-controlled Legislature.

It’s far from final, however. Regardless of how any of the judges and courts rule on the case in the coming months and years, both sides expect the case to be ultimately decided by the U.S. Supreme Court.

Still, advocates took time Wednesday to praise the decision.

“It’s a very sound and careful opinion that comes to the correct conclusion that it is extremely problematic to deny people the right to vote as a criminal punishment based only on the fact they’re poor,” said Paul Smith, vice president at the Campaign Legal Center, which is representing several of the plaintiffs.

Wednesday’s ruling applies only to a decision last year by U.S. District Judge Robert Hinkle, who allowed only the 17 felons who have sued the state be eligible to vote. The case is scheduled to go to trial in April.

DeSantis appealed Hinkle’s decision, arguing that allowing them to vote without first forcing them to pay their financial obligations would do “irreparable harm” to the state.

The judges flatly disagreed.

They wrote that Florida has a right to disenfranchise all felons. Multiple lawsuits over the years upholding the state’s Jim Crow-era law have made that clear.

But once voters passed Amendment 4, overturning that law, the state can’t then discriminate against some simply because they can’t pay, the judges wrote.

“The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement — as the voters of Florida plainly did — it must do so consonant with the principles of equal protection,” they wrote.

That reasoning creates more confusion, however.

When the Florida Supreme Court decided that “all terms” included the payment of all financial obligations, that settled the matter in the eyes of federal judges.

So if Amendment 4 requires those payments before voting, and if that requirement is unconstitutional, as the judges wrote, is Amendment 4 itself then unconstitutional?

That was an argument DeSantis’ lawyers made. They argued that the nearly two-thirds of Florida voters who approved Amendment 4 did not re-enfranchise felons — they re-enfranchised felons who have “paid their debt to society.”

The judges did not disagree, but were not persuaded by the argument that voters would not have approved Amendment 4 if they had known that exceptions would be made for poor felons.

All state officials would have to do to comply with Amendment 4, by that rationale, is make a “good faith effort” to allow poor felons to vote.

Related: Amendment 4 won't get fixed in Florida. Here's why.

That doesn’t mean it has to be an an elaborate or expensive process, the judges wrote.

They noted that Florida already has a simple process in place for indigent people in the criminal justice system: They fill out forms attesting to their income and assets when they apply to be represented by a public defender. (Being represented by a public defender usually adds hundreds of dollars in court fees to the defendant’s sentence, however.)

“It is not as though this is the first time (Florida) will be making individualized determinations about a criminal defendant’s financial situation on a large scale,” the judges wrote.

But GOP lawmakers have refused to make any substantial changes to the process, potentially preventing thousands of felons from registering to vote in the 2020 election. Other states allow felons to register to vote as long as they are paying off their financial obligations.

Desmond Meade, who led the effort behind Amendment 4 but has taken no part in the litigation, cautioned people not to read too much into the ruling.

“We are cautiously optimistic,” he said. “We don’t want to create an environment where people think this applies to them and it’s smooth sailing now. ... We know that this legal battle is far from over."

He called on DeSantis instead to revise the state’s clemency laws to make it easier for felons to vote.