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Florida judge suggests he’ll rule in favor of felons in voting rights case

But whatever U.S. District Judge Robert Hinkle rules is almost certain to be appealed before the 2020 election.
People gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 in Miami in 2018.
People gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 in Miami in 2018. [ WILFREDO LEE | Associated Press ]
Published May 6, 2020
Updated May 7, 2020

TALLAHASSEE — The federal trial over Florida’s 2018 constitutional amendment that allowed felon voting wrapped up on Wednesday with two things now clear.

One: The law Florida Republicans passed last year that requires felons pay back all court fees, fines and restitution before voting is wildly — almost hopelessly — complex.

Two: The legal battle over the law is far from settled.

Although his ruling is likely weeks away, U.S. District Judge Robert Hinkle suggested Wednesday that he would rule, at least in part, in favor of the 17 felons who sued the state arguing the Legislature’s bill was unconstitutional. Gov. Ron DeSantis advocated for the bill and signed it into law last year.

Hinkle said Wednesday he would issue an injunction in the case, one that was easy for the state to administer and would apply to all felons who are eligible, not just the plaintiffs. Hinkle’s decision could ensure thousands more vote in November’s presidential election, an uptick that could tweak Florida’s outcome.

Although he didn’t say what kind of injunction he would issue, it will likely try to solve the dilemma lawmakers created last year when they required all felons to pay back all court-ordered financial obligations before voting: What do you do with felons who are simply too poor to pay back all of those costs?

“My plan is to enter an injunction that tells you what to do,” Hinkle told a lawyer for Florida Secretary of State Laurel Lee, who oversees the state Division of Elections. “I expect it to be a whole lot easier to administer than anything you’ve dealt with so far.”

And he said he would do it soon. The 2020 presidential election is looming.

“This will be in a hurry,” he said, referencing the likely appeal to the next judicial level. “We need to get the case on up to the 11th Circuit.”

In 2018, Florida voters approved a ballot measure known as Amendment 4, which reversed a 150-year-old racist law prohibiting felons from voting. As one of the last states that kept felons from voting, and with well more than 1 million felons in the state, Amendment 4 was considered the greatest expansion of voting rights in America in decades.

The amendment restored the right to vote to most felons who have completed “all terms of sentence,” a phrase that state lawmakers set out to define a few months later.

Republican lawmakers, who control both chambers of the Legislature, defined “all terms” in the strictest way possible. They decided “all terms” would include the hundreds or thousands of dollars in court-ordered fines, fees and restitution routinely tacked on to someone’s sentence — something Amendment 4′s creators had agreed to in past comments.

But most felons can’t pay those amounts, keeping them off the voter rolls. Most felons are so poor when they enter the criminal justice system that they qualify for a public defender.

More than a dozen felons represented by civil rights groups, including the American Civil Liberties Union, immediately sued. They argued that the Legislature had created a “poll tax” and that the law unfairly discriminated against black felons, who make up a disproportionately large share of the state’s prison population. On top of that, black felons are more likely to owe financial obligations than white felons, University of Florida political science professor Dan Smith testified.

Florida’s maze of court fees and fines dates to the 1990s, when Florida voters approved a constitutional amendment that shifted the costs of the criminal justice system from all taxpayers to felons in the form of court-ordered fees.

“Almost all of that money goes to fund governmental programs or grants through the Legislature,” argued Danielle Lang, co-director of voting rights and redistricting at Campaign Legal Center on Wednesday. “These are taxes.”

Felons often can’t figure out how much they owe in those costs, a fact made clear after a week and a half of testimony from county and state elections officials.

To figure out how much some people owe, court clerks described having to weed through mismatching databases and court files so old they’re kept in shoe boxes. The chief operating officer for the Hillsborough County Clerk of Court testified that he and four others in his office spent 12 to 15 hours just to figure out how much one person owed.

Most felons have their court costs converted to civil liens that are turned over to debt collectors, which further complicates things. Debt collectors routinely take a 40 percent cut. A felon could have paid all $1,000 he owes, for example, but it would only be reported to the county clerk that they’ve paid $600, potentially keeping that person from voting.

It gets more complicated because of restitution to victims, something that no entity in Florida tracks. State Division of Elections Director Maria Matthews said some felons are being allowed to vote if they owe restitution because the state can’t prove it either way.

Matthews said her office still hasn’t created a process to verify how much felons owe. But she said the state has already created a possible voter registration form that would allow felons to mark whether they can’t afford to pay back all financial obligations.

“We don’t have anything final at this point," Matthews testified Tuesday. "We’ve just been chatting about it.”

Matthews testified that the state has a backlog of 85,000 applications to review, but state officials are only able to process 57 per day, a fact that seemed to stun Hinkle.

“We were all talking about having this done and in place where people could vote in the 2020 election,” he said Wednesday. “This suggests that they wouldn’t even be able to vote in the 2024 election.”

Information from News Service of Florida contributed to this report.

Correction: An earlier version of this story mistakenly stated Campaign Legal Center was affiliated with the ACLU due to a reporting error.