TALLAHASSEE — Amid rebukes from a federal judge, a top Florida elections official laid out the state’s process for determining whether felons are eligible to vote under a law that is the subject of a closely watched voting-rights trial that entered its second week Monday.
The outcome of the high-stakes trial could decide whether hundreds of thousands of felons who have served their time behind bars can cast ballots in this year’s presidential election.
Florida Division of Elections Director Maria Matthews’ testimony Monday was one of the key points of the trial about the constitutionality of a 2019 law requiring felons to pay “legal financial obligations” to be eligible to vote.
Republican legislators included the requirement of paying court-ordered fees, fines, costs and restitution in a law aimed at carrying out a 2018 constitutional amendment that restores voting rights to felons “who have completed all terms of their sentence, including parole and probation.”
National voting-rights groups, who are representing felons in the lawsuit, allege that hinging voting rights on finances amounts to an unconstitutional “poll tax.” But Gov. Ron DeSantis’ administration has fiercely defended the law, saying it reflects the language of the constitutional amendment.
Matthews told U.S. District Judge Robert Hinkle on Monday that she and other state officials have worked for months to create a process to identify felons who have outstanding financial obligations.
“I really take this very seriously,” Matthews said, under questioning from Hinkle. “I don’t want to establish a process that’s not fair and uniform and can be understood by everybody. And that’s what we’re struggling with here, while we’re having lots of people ask questions about it.”
Under a process that has been in place for years, Matthews’ agency verifies that Floridians who register to vote are eligible to cast ballots by checking a variety of court databases. Voters who are not deemed eligible are flagged, and the information is sent to county supervisors of elections, who make final determinations about eligibility and have the authority to remove people from the voting rolls.
Shortly before the start of the trial, attorneys representing the DeSantis administration released a procedure for identifying felons who had outstanding financial obligations. Plaintiffs’ lawyers, who pressed the state for the updated procedure, maintain the process is inadequate.
The new payments procedure
Under the revised plan, state elections workers are supposed to credit all payments felons have made — including fees to collections agencies or other third parties — toward the total amount assessed at the time of sentencing. If the payments equal or surpass the amount assessed at sentencing, the voter is considered eligible, according to the new procedure.
But determining who was paid, how much they were paid, and when they were paid can be difficult or impossible to discern, according to county elections supervisors, clerks of court and researchers who testified since the trial began last week.
Matthews said Monday her workers have not started to send files of voters flagged by the new process to county elections supervisors. She also said the state has not finalized a process that would allow individuals to say they can’t afford to pay their court-ordered financial obligations.
An irked Hinkle peppered Matthews with questions on Monday about the release of the state’s revamped internal procedures to flag ineligible voters, which DeSantis’ lawyers filed with the court on April 17. Hinkle said that was the first time he heard of what he called the state’s “first-dollar” principle of counting all payments toward the amount felons were assessed at the time of sentencing.
The revised process “fundamentally changed some of the issues in the case,” according to the judge.
“If this was the view all along, they [the state’s lawyers] probably were obligated to disclose it to somebody,” the judge said. “Somebody came up with this plan. At some point, I want to know who came up with the plan, and when did they come up with it. And you’re the best witness we’ve got and what you’re telling me is, ‘I don’t know who came up with it and when we came up with it.’ ”
The internal procedure released last month “is the most crystallized version of what our position is,” Matthews said.
“Obviously, since this whole thing was adopted it has been a process to try to come up with procedures and reading the law and coming up with procedures that we can implement,” she said, adding that “things have changed with input from our partners,” such as the Florida Commission on Offender Review.
The judge, however, continued to press her to name a date when the state settled on the procedure.
“It’s just crystallized,” she insisted. “That’s our position, and I don’t have anything else to offer at this point.”
85,000 voting applications flagged
Matthews said her office has a backlog of 85,000 applications that have been flagged, but the files have not been released to county elections supervisors.
Matthews said her staff of 20 processes an average 57 applications per day.
If 500,000 people applied to vote before the November election, Hinkle said it would take until 2022 for her office to process the files.
“Do you have the resources to do something like that?” he asked.
“We are understaffed at this time. We work through the files the best we can,” Matthews said, adding that her office is not dealing with cases involving outstanding financial obligations. “We have not started those yet. So I don’t know if it will go quicker, or slower.”
Hinkle appeared frustrated that the state has yet to finalize a plan.
“When are you going to do that? Because this [constitutional amendment] got adopted in November 2018. The statute has been in effect for now almost a year. We’re a few months out from the August primary. When are you going to work on this?” he asked.
Matthews, who has worked for the Department of State for two decades, said she didn’t know.
“Honestly, your honor, when I’m comfortable that we have a process that I can …,” she said, trailing off. “I want to be sure about our process. If the court’s fine with these procedures, then we’ll move forward.”
In an October preliminary injunction, Hinkle ruled that it is unconstitutional for the state to deny the right to vote to people who are “genuinely unable to pay” legal financial obligations. He also told the state to develop an administrative process in which felons could try to prove they can’t pay the court-ordered fees, fines and restitution. Earlier this year, Hinkle threatened to come up with a process of his own, if the state fails to act.
How to determine ability to pay?
Matthews said Monday she has not settled on a way people can show they are unable to pay their court-ordered debts, “if we’re going to go down that route of allowing for a way for them to be able to assert that they have an inability to pay.”
One option would rely on a form similar to what courts use to determine whether defendants are indigent, she said.
Or voters could seek an “advisory opinion” from the state in cases where her office is unable to determine whether someone is able to pay, Matthews said, pointing to a state law about advisory opinions in political campaigns. Hinkle said he was unsure the law applied to voters.
The state is also considering a check box on the voter registration form. The proposed form would allow applicants to attest they have outstanding legal financial obligations but are unable to pay them.
Determining whether someone can pay legal financial obligations is problematic because “it’s just a point in time that this person is asserting I’m not able to pay,” Matthews, a lawyer, said.
“That can change over time. I don’t know whether we have the wherewithal or the resources to follow up, whether an individual remains unable to pay. And that’s another concern I have as well,” she said.