Florida judges stand out during felon voting rights case

The U.S. Court of Appeals for the 11th Circuit could rule on Amendment 4 before November, but it's likely to end up before the U.S. Supreme Court.
Federal appellate Judge Barbara Lagoa, highlighted in green, asks questions about Amendment 4 during a hearing before the U.S. Court of Appeals for the 11th Circuit.
Federal appellate Judge Barbara Lagoa, highlighted in green, asks questions about Amendment 4 during a hearing before the U.S. Court of Appeals for the 11th Circuit. [ LAWRENCE MOWER | U.S. Court of Appeals for the 11th Circuit ]
Published Aug. 18, 2020|Updated Aug. 18, 2020

TALLAHASSEE — In a case that could have major ramifications ahead of the November election, a panel of federal judges in Atlanta questioned lawyers Tuesday about Florida’s decision to require felons pay off all court fees and fines before voting.

Ten judges from the U.S. Court of Appeals for the 11th Circuit, half of whom were appointed by President Donald Trump, peppered lawyers representing Gov. Ron DeSantis and more than a dozen felons about the state’s law and whether its requirements to pay off all fees equated to a modern-day “poll tax.”

Most of the questioning, however, fixated on complicated judicial precedents. After more than two hours of back-and-forth that was carried on Zoom, the video conferencing site, judges gave little indication how they would rule.

One exception was Judge Barbara Lagoa, who, along with Judge Robert Luck, was appointed to the court by Trump after Gov. Ron DeSantis named them to the Florida Supreme Court last year.

Lagoa asked many questions that indicated she agreed with DeSantis’ position on Amendment 4, passed by Floridians in 2018 that wiped away the state’s Jim Crow-era ban on voting by people convicted of felonies.

At one point, Lagoa questioned whether the court, if it finds parts of Amendment 4 unconstitutional, shouldn’t simply void the entire amendment.

American Civil Liberties Union attorney Julie Ebenstein responded that not even DeSantis’ attorneys have said that Amendment 4 should be tossed out. Judges routinely “sever” parts of a law, striking some parts while preserving others.

“Everybody agrees that nullifying Amendment 4 would be an absurd result that should be avoided,” Ebenstein said.

Luck was the only judge not to ask a question.

Florida’s battle over felon voting rights is considered one of the most prominent voting cases in the nation, with what’s believed to be up to 1 million people’s voting access at stake ahead of the November election. It’s unknown if the court will rule ahead of the election, but both sides expect the case to be ultimately decided by the U.S. Supreme Court. The deadline to register in Florida to vote in the November election is Oct. 5.

Nearly two-thirds of Florida voters approved Amendment 4 two years ago, which was touted as America’s greatest expansion of voting rights in decades.

The measure allowed people to vote as long as they completed “all terms” of sentence. Almost immediately, those two words sparked countless hours of debate in the Legislature and federal courts.

Gov. Ron DeSantis and the GOP-controlled Legislature drew a hard line on “all terms,” passing a bill that requires people with felony convictions to pay off all fines, court fees and restitution to victims before being allowed to vote.

That action excludes an estimated 80 percent of people with felony convictions — at least 800,000 people in the state — who still owe court fees or fines. Many of those people pay off the amounts in small increments, typically to private debt collectors. While the creators of Amendment 4 agreed that “all terms” included financial obligations, they argued that they should be considered complete once financial obligations are transferred from the criminal justice system and turned into civil liens.

The Legislature’s bill, known as Senate Bill 7066, prompted the American Civil Liberties Union and other groups to sue the state, accusing DeSantis and lawmakers of imposing an unconstitutional “poll tax.”

A federal judge in Tallahassee in May agreed that requiring people to pay court fees, which are mandatory costs that subsidize the criminal justice system, were unconstitutional.

The judge also said that the state couldn’t keep people from voting if they couldn’t afford to pay their costs, and he allowed anyone who was poor enough to be appointed a public defender in their criminal case to automatically qualify to vote.

That ruling was stopped a month later by the 11th Circuit until they could hear Tuesday’s arguments.

Some of the judges Tuesday noted that SB 7066 made it nearly impossible for many people to vote because they don’t know how much they owe in fees, fines or restitution to victims. The state’s system of tracking court fees and fines is an administrative nightmare handled solely by the state’s 67 county clerks of court. Nobody tracks restitution to victims.

Judge Adalberto Jordan, who was appointed by President Barack Obama, noted that the state, after nearly a year of work, couldn’t even answer whether the 17 felons who filed the initial lawsuit still owed money to the courts.

“Florida couldn’t even process 17 applications,” Jordan said. “What does that tell you about the rationality of Florida’s system?”

“It tells me that Florida didn’t get its act together as quickly as one would hope,” said Charles Cooper, a prominent D.C. attorney representing DeSantis and the state.

Cooper said “Florida has now gotten its act together,” and that 35 people have used a new process that was quietly announced last week allowing people to request a legal opinion on whether they owe money from Secretary of State Laurel Lee, who was appointed by DeSantis to oversee the state’s elections system.

Lagoa appeared to defend SB 7066 by noting multiple times that lawmakers included a provision allowing people to ask a judge to have their financial obligations converted to community service hours. GOP lawmakers have cited that provision as a way for felons to get relief.

Lagoa noted that Miami-Dade County Public Defender Carlos Martinez created a streamlined process to hear those cases. While officials in a few counties, including Hillsborough, have created such “rocket dockets,” the vast majority of counties have not done so. Attorneys for the state haven’t used the streamlined process in their arguments justifying SB 7066.

Campaign Legal Center attorney Paul Smith, who is representing several people who can’t afford to vote, responded that the provision has been a non-issue during the last year of litigation.

“There’s no showing in this case that that’s a meaningful remedy,” Smith said. “The state made no effort to suggest that that was a reasonable remedy.”

Many of the questions surrounded the Florida Supreme Court’s ruling that “all terms” included all court fees, fines and restitution. Both Lagoa and Luck were on the Supreme Court during arguments in that case, but were appointed by Trump to the 11th Circuit before ruling on it.

Advocates asked Lagoa and Luck to recuse themselves from Tuesday’s hearing, citing a judicial code of ethics requiring judges to recuse themselves from cases in which they were involved, including “other stages of litigation.”

Both refused to step down, saying that the Supreme Court action was a different type of hearing than the 11th Circuit case. When Tuesday’s hearing turned to the Florida Supreme Court’s opinion that they were a part of, neither spoke.