by David M. Reutter

Organizations that supported Amendment 4 – a 2018 ballot initiative to amend the Florida Constitution to restore voting rights to most people with felony convictions – have sued to block a new law that not only undermines the intent of the initiative but also “creates wealth-based hurdles to voting” – a modern poll tax, they argue, that will have the same racially discriminatory effects as those that persisted during the Jim Crow era of segregation.

With nearly 65 percent of voters supporting Amendment 4 in the November 2018 elections, Florida was poised to enact what the Brennan Center for Justice called “the single largest expansion of voting rights in the United States since the 26th Amendment lowered the voting age to 18 in 1971.”

“Our research shows that the people who have registered to vote under Amendment 4 are disproportionately black and low-income,” said Myrna Pérez, director of the Brennan Center’s Voting Rights and Elections Program.

The Sentencing Project estimated that 1.4 million Floridians would have their voting rights restored as a result of Amendment 4. The ballot initiative provided for the restoration of voting rights for ex-felons “upon completion of all terms of sentence including parole or probation,” except for people convicted of murder or felony sex offenses.

But when the Florida legislature went into session in March 2019, lawmakers filed bills to limit the scope of Amendment 4. By the end of the session in May, legislators had passed SB 7066, which states that completion of “all terms of sentence” requires the “[f]ull payment of restitution ordered to a victim by the court as part of the sentence.” It also requires “[f]ull payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision.”

Governor Ron DeSantis signed the bill into law on June 28, 2019.

That same day, four lawsuits were filed to block the restrictive legislation. The first challenge was mounted by state chapters of the League of Women Voters and the ACLU. The second was filed by attorneys representing Kelvin Jones, a former felon unable to pay more than $50,000 in court-ordered fines and fees, and thus unable to vote. Those two actions and a third by the Campaign Legal Center were combined into one case by a federal district court. That case was then added to a fourth filed by the Southern Poverty Law Center, overseen by U.S. District Court Judge Robert Hinkle.

The plaintiffs in the consolidated lawsuit argue that SB 7066 “creates two classes of returning citizens: those who are wealthy enough to vote and those who cannot afford to,” with the result that “disenfranchisement will be borne disproportionately by low-income individuals and racial minorities, due to longstanding and well-documented racial gaps in poverty and employment.”

“There can be no mistaking the racial and class implications of this regressive new legislation,” said Pérez.

Political science professor Daniel Smith with the University of Florida studied data from 48 of the state’s 67 counties and concluded that over 80 percent of former felons had outstanding financial obligations – putting their voting rights at risk.

The plaintiffs pointed out that Florida’s constitutional disenfranchisement provision was created in 1868 after the former confederate state was ordered by Congress to “adopt a constitution without an explicitly racially discriminatory suffrage rule.” Florida was also the first state to adopt a poll tax and followed that with “voter suppression tactics such as literacy tests and residency requirements,” the lawsuit states.

It further alleges that many “returning citizens (from incarceration) have outstanding financial obligations that they cannot pay.” Moreover. the clerk of courts labeled 83 percent of all court-related fines and fees as “minimal collections expected due to the fact most defendants are indigent.”

Of particular concern is a provision in SB 7066 that requires former felons to pay any “financial obligation arising from a felony conviction” – including those unrelated to their original sentence.

While SB 7066 was being debated, the bill’s sponsor in the House, state Rep. James Grant, said he didn’t “want to know the impact” it might have. After it passed he said he “intentionally stayed blind to the data of the affected classes.” County election officials are also left blind, as there is currently no simple way to determine if a former felon has satisfied all of his or her legal financial obligations.

Some lawmakers noted that supporters of Amendment 4 apparently agreed with SB 7066’s interpretation of the ballot initiative, pointing to comments by former House Speaker Jon Mills, who said during 2017 testimony before the state Supreme Court in support of Amendment 4 that fines and restitution were considered part of an offender’s sentence.

In a September 12, 2019 editorial published in the Fort Lauderdale Sun-Sentinel, a trio of top House Republicans – Speaker Pro-Tem MaryLynn Magar, Majority Leader Dane Eagle and Majority Whip Mike Grant – blasted opponents of SB 7066 for “flip-flopping and telling the court one thing to get the amendment on the ballot and then telling the legislature something else to speed up restoration.”

In August 2019, Governor DeSantis asked the state Supreme Court for an advisory opinion as to the legality of SB 7066, and the following month the state asked Judge Hinkle to delay the consolidated lawsuit challenging the law until the Supreme Court issued a ruling.

“A stay, like a dismissal, would promote judicial economy and federal-state comity,” the state wrote in its brief to Judge Hinkle. “If the Florida Supreme Court agrees that the phrase ‘all terms of sentence’ encompasses financial obligations imposed as part of the sentence, this might well alter the course of the pending federal proceeding, or at the least, require plaintiffs to amend their complaints.”

Judge Hinkle denied the state’s motion for a stay on September 11, 2019, meaning the consolidated suit against SB 7066 can proceed before the state Supreme Court issues an opinion on the new law. PLN will report future developments. See: Gruver v. Barton, U.S.D.C. (N.D. Fla.), Case No. 4:19-cv-00300-RH-MJF.

The Human Rights Defense Center, PLN’s parent organization, opposed Amendment 4 because it created classes of felons ineligible for restoration of their voting rights.

“The problem with Amendment 4, the voting rights ballot initiative, is that it perpetuates the discrimination and bigotry of disenfranchisement against a subclass of ex-felons – those convicted of murder or sex crimes,” wrote HRDC executive director Paul Wright. “All the talk of Amendment 4 being about second chances, redemption and reintegration into the community rings hollow and opportunistic when it excludes certain former prisoners from the franchise.” [See: PLN, Oct. 2018, p.32; Sept. 2018, p.14]. 

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Sources: politico.com, sun-sentinel.com, vox.com, thecentersquare.com

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