TALLAHASSEE — Two former Florida Supreme Court justices appointed to a federal appeals court by President Donald Trump are facing increased pressure to step aside from a voting-rights case that could decide whether hundreds of thousands of convicted felons can cast ballots in Florida this fall.
Democratic members of the U.S. Senate Judiciary Committee this week accused Judges Barbara Lagoa and Robert Luck of judicial misconduct and reneging on pledges they made before their Senate confirmations to the Atlanta-based 11th U.S. Circuit Court of Appeals last year.
The letters are the latest salvo in a high-stakes challenge to a 2019 Florida law requiring felons to pay “legal financial obligations” associated with their convictions to be eligible to vote.
The law, approved by Republican legislators and signed by Gov. Ron DeSantis last year, was aimed at carrying out a 2018 constitutional amendment that restored voting rights to felons “upon completion of all terms of sentence, including parole or probation.”
Plaintiffs who challenged the law alleged that linking voting rights with finances amounts to an unconstitutional “poll tax.”
Siding with the plaintiffs, U.S. District Judge Robert Hinkle ruled that the state cannot deny voting rights to felons who are “genuinely unable to pay” their court-ordered debts. In a May decision cementing a preliminary injunction he issued last fall, Hinkle repeatedly referred to the 2019 statute as Florida’s “pay-to-vote law.”
Lawyers for the DeSantis administration, however, maintain that the law properly carries out the constitutional amendment and its supporters’ intent.
DeSantis appealed Hinkle’s ruling, and in an unusual move, the 11th Circuit agreed to what is known as an “en banc,” or full court, initial review of the case. Three-judge panels nearly always conduct initial reviews of appeals.
The appellate court also put Hinkle’s ruling on hold and scheduled oral arguments in the case for Aug. 18, the same day as Florida’s primary elections.
Plaintiffs in the lawsuit, known as Jones v. DeSantis, last week asked the appellate court to disqualify three judges — Lagoa, Luck and Andrew Brasher — from the case. Lagoa and Luck should not be allowed to participate in the case because they were involved in the litigation while they served on the Florida Supreme Court, the plaintiffs argued. Brasher, a former solicitor general of Alabama, should also be disqualified because he participated in litigation “challenging the same government policy” as the Florida challenge in a 2016 case, the plaintiffs argued.
Brasher, another Trump appointee, on Tuesday recused himself from the Florida case, saying he had established a policy of not participating in cases in which the Alabama attorney general’s office had represented a party for about two years.
The policy, recommended by a committee that oversees codes of conduct for federal judges, “would avoid any appearance of partiality,” Brasher wrote an order issued Tuesday. The judge, who joined the court on June 30, noted that Alabama’s attorney general had filed what is known as an amicus, or friend of the court, brief in the Florida case.
“Other judges may reasonably choose different policies or different time periods. Some judges may not feel the need for a blanket recusal policy at all. But I thought the suggestion was a good idea…,” he wrote.
Luck and Lagoa participated in oral arguments about the felons-voting issue at the Florida Supreme Court on Nov. 6. They were confirmed to the 11th Circuit later in November, prior to the issuance of a Florida Supreme Court advisory opinion in support of DeSantis’ position on Jan. 16.
In documents and written testimony submitted to the Judiciary Committee during the nomination process last year, Luck and Lagoa “promised under oath that, if confirmed to the 11th Circuit, you would recuse yourself from cases in which you participated as a Florida Supreme Court justice,” the Democrats wrote in Tuesday’s letters.
“Your participation in the decision to grant en banc review in Jones, and any further participation in this case, appears to contradict the commitments you made to the committee that you would recuse yourself from any case where you have ‘ever played any role,’ " the Democrats added.
Congress has the responsibility of overseeing the federal judiciary, the Democrats wrote.
“Consistent with this congressional oversight purpose, we ask you to explain how your involvement in the decision to grant en banc review in Jones v. DeSantis --- and your continued participation in this case --- is consistent with the commitments you made to the Senate Judiciary Committee and the Code of Conduct,” the senators concluded.
The Democrats also sent a letter to Brasher, the same day he issued the order recusing himself.
Which judges participate in the voting-rights decision could have a significant impact on Florida’s electorate this fall, when Trump will be at the top of the ticket in the Nov. 3 general election. Hinkle’s ruling, which is now on hold, would open the door for hundreds of thousands of convicted felons to register and vote without taking any further action.
One of the 12 judges on the federal appeals court, Robin Rosenbaum, already has disqualified herself from the Florida case. Rosenbaum was a federal district judge in South Florida before being appointed to the appeals court in 2014.
Trump has appointed half of the conservative-leaning court’s judges. In addition to Luck, Lagoa and Brasher, the president also tapped Judges Kevin Newsom, Elizabeth Branch and Britt Grant.
President George W. Bush appointed Chief Judge William Pryor, and former President Bill Clinton appointed Judge Charles Wilson. Former President Barack Obama appointed Judges Beverly Martin, Adalberto Jordan, Jill Pryor and Rosenbaum.
The U.S. Supreme Court last week ruled against the plaintiffs in a challenge to the 11th Circuit’s decision to place a stay on Hinkle’s ruling. The plaintiffs had argued that the stay on Hinkle’s ruling would block felons from voting in the August primary elections and could prevent them from casting ballots in November.