Federal judge: Florida can’t stop poor felons from voting

U.S. District Judge Robert Hinkle ruled against a Florida law limiting the scope of Amendment 4, a 2018 ballot measure allowing most felons to vote. He called the law, which he mostly struck down, a “pay-to-vote system”
People gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 and eat free ice cream at Charles Hadley Park in Miami in 2018.
People gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 and eat free ice cream at Charles Hadley Park in Miami in 2018. [ WILFREDO LEE | Associated Press ]
Published May 24, 2020|Updated May 25, 2020

TALLAHASSEE — A federal judge ruled Sunday that it is unconstitutional to prevent felons in Florida from voting because they can’t afford to pay back court fees, fines and restitution to victims, striking down parts of a law passed by Republican lawmakers and signed by Gov. Ron DeSantis last year.

Calling the law a “pay-to-vote system,” U.S. District Judge Robert Hinkle’s 125-page ruling declares that court fees are a tax, and it creates a new process for determining whether felons are eligible to vote.

"This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay,” Hinkle wrote.

With one sentence, Hinkle also allowed two large groups of felons to register to vote: those who were appointed an attorney for their criminal case because they couldn’t afford one on their own, and anyone who had their financial obligations converted to civil liens.

Most felons are appointed attorneys, and nearly all have their court fees and fines converted to civil liens.

For all other felons who can’t afford to pay their financial obligations, Hinkle ordered state officials to adopt a new process for determining whether felons are too poor to vote: they can request an advisory opinion from the Secretary of State Laurel Lee.

If Lee can’t issue the opinion within 21 days of receipt — and tell the felon how much fines and restitution to victims they owe, and how the state came up with that amount — they can’t stop the felon from registering to vote, Hinkle wrote.

He said that process would be simple and fast for most cases, since most convictions do not require felons pay back court fines — such as $50,000 for a drug trafficking charge — or restitution to victims.

“In most cases, the Division (of Elections) will need to do nothing more on (legal financial obligations) than review the judgment to confirm there is no fine or restitution,” wrote Hinkle, who was appointed to the U.S. District in 1996 by President Bill Clinton. “In the remaining cases — the cases with a fine or restitution — the overwhelming majority of felons will be unable to pay.”

But for some cases, it will be an impossible burden for the state to meet. An eight-day trial showed that for many older convictions, it’s impossible to determine how much in restitution or fines someone owes.

“That the Director of the Division of Elections cannot say who is eligible makes clear that some voters also will not know,” Hinkle wrote.

Hinkle’s ruling is expected to be appealed. A spokeswoman for DeSantis said the state was reviewing the decision.

The decision could have important effects on the November presidential election in the nation’s largest swing state. Florida has more than 1 million felons, although the state has not yet seen a dramatic rise in registrations from felons after Florida voters passed a constitutional amendment in 2018 that allowed most who had completed their sentences to register to vote.

Carl Tobias, a professor at the University of Richmond School of Law, called Hinkle’s Sunday ruling “perhaps the most important ruling in the U.S. now ahead of the November election."

And it was praised by the American Civil Liberties Union and other groups that sued DeSantis and state elections officials last year.

“This ruling means hundreds of thousands of Floridians will be able to rejoin the electorate and participate in upcoming elections,” said Julie Ebenstein, senior staff attorney with ACLU’s Voting Rights Project. “This is a tremendous victory for voting rights.”

Neil Volz, a spokesman for the Florida Rights Restoration Coalition, which created Amendment 4 but was not a party to the lawsuit, called it “a game-changer."

In his ruling, Hinkle declared that it unconstitutional for the state to require felons pay court fees, which fund the criminal justice system and state coffers, before voting. He called them “a tax by any other name,” noting that in one county, defendants have to pay a minimum of $548 in court fees.

“The requirement to pay fees and costs as a condition of voting is unconstitutional because they are, in substance, taxes,” he wrote.

The state can require felons pay court fines — such as a $50,000 fine for trafficking drugs — and restitution to victims, he ruled. But it's unconstitutional for the state to require felons pay amounts that are unknown.

Restitution, for example, is typically paid to the victim, and no entity in the state tracks it. It can be almost almost impossible for felons to determine how much they owe if the victim is dead or if the victim is a business that is no longer in business.

“Indeed, there may be nobody to pay, even if a felon is willing and able to make a payment. Insisting on payment of amounts long forgotten seems an especially poor basis for denying the franchise,” he wrote. “The requirement to pay, as a condition of voting, amounts that are unknown and cannot be determined with diligence is unconstitutional.”

Hinkle’s ruling is just the latest turn in the story of Amendment 4, which was approved by nearly two thirds of voters in 2018. The amendment was intended to reverse the state’s Jim Crow-era law barring felons from voting and was the nation’s largest expansion of voting in decades.

The amendment restored the right to vote to nearly all felons who completed “all terms of their sentence including parole or probation." But the definition of “all terms" was not defined in the amendment, and it was immediately contested by lawmakers and advocates.

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

With DeSantis’ encouragement, the Republican-controlled Legislature in 2019 drew a hard line. Lawmakers passed a bill defining “all terms” to include all court fees, fines and restitution associated with a case.

Those costs, at a minimum, are hundreds of dollars — amounts that many felons can’t, and don’t, pay.

Although the creators of Amendment 4 also said financial obligations were required, critics dubbed the bill a “poll tax.” More than a dozen felons, represented by lawyers from the American Civil Liberties Union and other groups, sued DeSantis as soon as he signed the bill into law, arguing that it was unconstitutional.

During a teleconferenced trial that ended May 6, held last month, lawyers argued that lawmakers and DeSantis created a system that is almost hopelessly complicated for felons. Felons often can’t determine how much court fees and fines they owe, in part because state and county officials themselves sometimes don’t know.

Related: Florida’s Amendment 4 trial begins with social distancing and glitches

In his ruling, Hinkle clearly sided with the plaintiffs that it was too difficult to pay, even for those who could afford to, because it was too hard to figure out how much was owed.

“Determining how much a person convicted of a felony in Florida was ordered to pay as part of a criminal sentence is not as easy as one might expect,” Hinkle wrote. “It is sometimes easy, sometimes hard, sometimes impossible. Determining how much a person has paid, especially given (Florida’s) byzantine approach to calculating that amount, is more difficult, but this, too, is sometimes easy, sometimes hard, sometimes impossible.”

He explained how difficult it was by illustrating one plaintiff’s difficulties.

“An extraordinarily competent and diligent financial manager in the office of the Hillsborough County Clerk of Court, with the assistance of several long-serving assistants, bulldogged (the plaintiff’s) case for perhaps 12 to 15 hours,” Hinkle wrote. “The group had combined experience of over 100 years. They came up with what they believed to be the amount owed. But even with all that work, they were unable to explain discrepancies in the records.”

Another plaintiff from Miami-Dade had no hopes of paying what he owed.

The plaintiff “was unaware he owed any amount until he registered to vote and received a notice from his county’s Clerk of Court,” Hinkle wrote. “He now believes he owes $4,483 arising from convictions in Miami-Dade and Okeechobee Counties. The record does not show what amounts were included in his sentences. The Miami-Dade Clerk of Court’s website includes a docket entry indicating $754 was assessed as costs. One cannot know, from this record, what amount (Florida) asserts (the plaintiff) must pay to vote. But Mr. Mitchell works at a nonprofit without salary; even if the amount was only $754, Mr. Mitchell would be unable to pay it.”

Throughout his ruling, Hinkle spared little in criticizing state officials.

“Even with a team of attorneys and unlimited time, the State has been unable to show how much each plaintiff must pay to vote under the State’s view of the law,” Hinkle wrote.

He also slammed Florida’s clemency board, which has been the sole vehicle used to restore voting rights for felons who had completed their sentences.

“The Board moves at glacial speed and, for the eight years before Amendment 4 was adopted, reenfranchised very few applicants,” Hinkle wrote. “For the overwhelming majority of felons who wished to vote, clemency Board was an illusory remedy.”