Three federal judges hearing a legal challenge to a Florida measure allowing felons to vote asked tough questions of the attorney for Gov. Ron DeSantis on Tuesday, repeatedly asking about the fairness of a subsequent bill that levied what critics called a poll tax.
The questioning by the panel for the U.S. 11th Circuit Court of Appeals in Atlanta went to the heart of the battle over Florida’s Amendment 4, which voters passed in 2018. The judges appeared critical of the requirement passed by the Legislature last year that felons pay back all court fees, fines and restitution to victims before being allowed to vote.
The tacked-on legislative requirement is likely to prevent hundreds of thousands of felons from voting because they can’t afford to immediately pay back what is often $500 or more in fees. The judges sharply questioned DeSantis’ attorney, Pete Patterson, about how the law essentially creates two classes of felons: those who can afford to pay and those who can’t.
“Isn’t it punitive to say, ‘I will reenfranchise this group, but not reenfranchise this group’?” Judge Stanley Marcus asked.
Patterson responded that when 64.5% of Florida voters approved Amendment 4, the measure restored the right to vote to nearly all felons who completed “all terms of sentence,” which he said included the financial obligations.
Judge Lanier Anderson noted that under Patterson’s and the bill’s interpretation of Amendment 4, two felons could receive the same punishment for the exact same crime, yet one might vote before the other if he or she has more money.
“It’s precisely the same situation, except for punishment on the basis of poverty,” Anderson said.
“In one case, justice has been done,” Patterson responded. “In the other case, it has not.”
The court was hearing an appeal from DeSantis, a Republican who opposed Amendment 4, and Secretary of State Laurel Lee, who hoped to stop a U.S. district judge’s preliminary injunction in October.
The 11th Circuit panel is expected to rule in the coming weeks on lifting the district judge’s injunction.
Amendment 4 overturned Florida’s 150-year-old law that banned felons who had completed their sentence from voting. The amendment restored the right to vote to nearly all felons who completed “all terms of sentence, including parole or probation.”
The historic amendment was celebrated as the nation’s greatest expansion of voting rights in decades, with up to 1.4 million felons believed to be reenfranchised. Florida was one of just a handful of states that had not repealed its Jim Crow-era laws meant to keep black Americans from voting.
But almost as quickly, Amendment 4 became mired in confusion and debate, partly of its creators’ own doing.
At DeSantis’ urging, GOP lawmakers passed a law months later that returned the right to vote only for those felons who were able to first pay all court fees, fines and restitution to victims. Other states allow felons to vote as they’re paying those fees over time.
For at least hundreds of thousands of felons, the new restrictions meant they would not be able to vote for years, if ever. Court fees often reach $1,000 or more, a considerable sum for felons who already have trouble finding work.
Court fines can be tens of thousands of dollars. And one felon told lawmakers that she owed $59 million in restitution to insurance companies, almost certainly guaranteeing she’ll never be able to vote.
Republican lawmakers were denounced nationally for creating a “poll tax,” but they justified the harsh terms in the bill by citing the words of the amendment’s own authors.
University of Florida attorney Jon Mills, who co-wrote the amendment, told the Supreme Court that “all terms” included financial obligations. The amendment did not define “all terms.”
Earlier this month, the Florida Supreme Court agreed that “all terms” included the financial obligations.
Civil rights groups sued as soon as Senate Bill 7066 became law, arguing that it was unconstitutional. In October, District Judge Robert Hinkle, wrote that he also agreed that “all terms” included the financial obligations.
However, citing an 11th U.S. Circuit Court opinion signed by eight judges, he wrote that Florida can’t stop people from voting just because they’re too poor.
“Florida ... cannot deny restoration of a felon’s right to vote solely because the felon does not have the financial resources to pay the other financial obligations,” Hinkle wrote.
Hinkle has not ruled on the constitutionality of SB 7066 itself. A trial on that point is set to begin in his courtroom in Tallahassee in April.
Patterson argued Tuesday that one of the reasons for the bill was to incentivize felons to repay their debts. But judges noted that many felons simply cannot afford to pay and likely never will.
“You don’t get blood out of a stone,” Anderson said.
The judges also had several questions for attorneys on both sides about how many felons cannot afford to pay back their debts. The state has no definite figures, but a preliminary study by Dan Smith, another University of Florida professor, estimated that 80% of felons had not paid off their court obligations.
In October, Hinkle said lawmakers created an “administrative nightmare” with their bill, and he urged them to fix it this legislative session, which ends weeks before the trial.
Felons have no easy way to see if they still owe financial obligations handed down when they were sentenced. No local or state entity tracks restitution.
GOP lawmakers did include one way for felons to seek relief under SB 7066: They could ask a judge to convert their financial obligations to community service hours, which are typically converted at $10 per hour in Florida state courts. Such relief is not available to anyone convicted of a federal crime.
But Hinkle scoffed at the idea during a court hearing last year.
“If you had a $25,000 fine in a drug case, nobody’s going to work that off through community service hours,” he told lawyers for the state.
Hinkle said lawmakers could change their bill to make it more accommodating to felons, and the lawmakers who sponsored SB 7066 said they will make “tweaks” this session.