U.S. District Judge Robert Hinkle nailed the issue succinctly: Florida lawmakers made a mess of the state’s new felon voting rights amendment, but the Legislature - not the federal courts - is the first place to try to fix it. The judge’s frank assessment, made as he oversees a legal challenge to the law, provides a welcome dose of reality and a pragmatic path for resolving ballot access in advance of the 2020 elections. Whether the Legislature responds appropriately in January is another question.
Florida voters righted a historic wrong in November by approving Amendment 4, which automatically restores voting rights for most felons who complete “all terms” of their sentence. The move was aimed at reversing a 150-year-old racist law meant to keep black people from voting. But the Republican-led Legislature took its first opportunity to narrowly define the law, adopting legislation this year that requires felons to pay court fees, fines and restitution in full before they can register to vote. That effectively bars most of the felons the amendment was aimed at helping from having their voting rights automatically restored, and it ignores the clear intent of the voters.
The fallout has been felt across the board as felons, county court clerks and local elections supervisors grapple in the dark with a confusing and uneven web of red tape. Felons leaving prison hardly are in position to satisfy thousands of dollars in court fees and fines. There is also no easy way to determine if felons qualify, because no agency in Florida tracks restitution, and some county clerks have no records on fees in older cases. State and local elections officials also are using different voter registration forms. And criminal and financial records held by state and local agencies are often inconsistent and unreliable.
"What we have now is an administrative nightmare,” Hinkle said after two days of hearings in Tallahassee last week. The Legislature’s crackdown on Amendment 4 has created a “mess,” the judge said, that has left felons afraid to register. Hinkle also said the law raises constitutional questions, because it creates a system that keeps people from voting who cannot afford to pay - despite an federal appellate court ruling making clear that access "cannot be made to depend on an individual’s financial resources.” While Hinkle does not equate the law to a poll tax, as many opponents do, the judge questioned whether the law violates the U.S. Constitution by amounting to a tax-barrier to voting.
Hinkle created a window for lawmakers to resolve this issue. The Legislature could remove or loosen these financial hurdles to voting. Sen. Jeff Brandes, R-St. Petersburg, had advocated for a bill that would allow felons to vote while they pay down their fines and fees. The state could use a simple, standardized voter registration form that enumerates the new voting rights in plain language. Hinkle set a trial date in the legal challenge for April 6. With the next legislative session beginning Jan. 14, lawmakers have one more shot to agree on a fix before the registration deadline of Feb. 18 to vote in the state’s presidential preference primary.
Republicans like to complain about activist judges. Here’s a federal judge voicing his concerns relating to the law while recognizing the elected legislators’ interest in fixing a flawed statute they wrote. The Legislature should use this opportunity to further the entire purpose of Amendment 4 by giving felons a fair and practical shake at participating in the democratic process. If they fail again to respect the intent of the voters, the federal courts will have to do it.
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