by David M. Reutter

In a 6-4 en banc ruling, the Eleventh Circuit Court of Appeals held that Florida can bar ex-felons from voting until they pay all court fines, fees, and restitution — even if they are unable to pay.

The court’s September 11, 2020, opinion was written by Chief Judge William Pryor. The case was before the court after Florida appealed U.S. District Judge Robert Hinkle’s April 7, 2020, order that found Florida law constituted an “unconstitutional pay-to-vote system.” [See PLN, June 2020, p. 62.]

The controversy started when a 64.55% super-majority of voters in 2018 approved Amendment 4, which restored voting rights to people who had completed “all terms of sentence,” except those convicted of murder and sex offenses.

During its 2019 legislative session, Florida’s GOP-dominated legislature passed SB 7066. It defined that re-enfranchisement prerequisite to mean “any portion of a sentence that is contained the four corners of the sentencing document,” including “full payment of LFOs (legal financial obligations) ordered by the sentencing court as part of the sentence.” [See PLN, Oct. 2019, p. 58; Sept. 2018, p. 14]

The Eleventh Circuit divided its en banc majority opinion into three parts. The first addressed the Equal Protection Clause claim. It noted that in approving Judge Hinkle’s grant of preliminary injunction in an interlocutory appeal by the State, a three-judge panel applied a “heightened scrutiny” standard to find Amendment 4 and SB 7066 invidiously discriminated based on wealth. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).

The en banc majority said “[t]hat decision was wrong.” It found “Florida withholds the franchise from any felon, regardless of wealth, who has failed to complete any term of his criminal sentence — financial or otherwise.” A rational basis review applies in cases that scrutinize reenfranchisement in the absence of any suspect classification, the court wrote in overruling the panel’s previous ruling to the contrary.

The majority found the re-enfranchisment requisite was not a poll tax. Rather, it found the requirement to pay LFOs are “directly related to legitimate voter qualifications.” Turning to the prerequisite classification, the court said Florida has two relevant interests.

“The twin interests in disenfranchising those who disregard the law and restoring those who satisfy the demands of justice are both legitimate goals for a State to advance,” the Court wrote. “If a State may decide that those who commit serious crimes are presumptively unfit for the franchise, it may conclude that those who have completed their sentences are the best candidates for reenfranchisement.”

Having found no Equal Protection violation, the court determined that there was no basis to conclude that court costs and fees imposed as part of a criminal sentence are taxes. It pointed to SCOTUS precedent that holds that “if a government exaction is a penalty, it is not a tax.”

The imposition of court fines, fees, and restitution is part of the penalty imposed as punishment for a crime, the court said. Florida law is clear that costs of prosecution are criminal punishment. If a felon cannot pay an LFO, the sentencing court may “convert the statutory financial obligation into a court ordered obligation to perform community service.”

The majority rejected the felons’ argument that the LFO payment requirement violates the Twenty-Fourth Amendment. The court further found there was no Due Process violation based on a vagueness challenge. That felons argued SB 7066 “makes it difficult or impossible for some felons to determine whether the are eligible to vote.” Registering to vote or voting without pay all LFOs could subject the felons to prosecution.

Judge Hinkle found there was no way for felons or even the State to determine how much they owe or have paid in the LFOs. “[T]hese concerns arise not from a vague law but from factual circumstances that sometimes make it difficult to determine whether an incriminating fact exists,” the Eleventh Circuit said. It is clear that felons cannot register to vote or vote unless they have satisfied the LFOs, so “the laws are not vague.” It found that as the laws are legislative, they are not subjective to procedural due process.

In dissent, Judge Jill Pryor said that figuring out whether LFOs have been paid is merely “legislative.” She said it was adjudicative because “the Division of Elections is tasked with both conducting an individualized assessment of felon’s LFOs and determining whether they have been satisfied.”

SB 7066 failed to “provide sufficient standards for how to determine whether a felon has satisfied the LFO requirement, resulting in an arbitrary application.” Judge Hinkle’s judgment granted injunctive relief to set in place procedures to make that determination.

The majority noted that 85,000 felons have registered to vote and none have been removed from the voter rolls, and until they are removed, all 85,000 are entitled to vote. In a dissenting opinion, Judge Jordan said that “Florida has not completed screening even a single registrantfor unpaid LFOs.”

“The truth is that many of these registrants will not vote to avoid the risk of prosecution, even if they are in fact eligible, creating a de facto denial of the franchise,” wrote Judge Jill Pryor. “Florida ignores this reality, and the majority is blind to it.

The 2020 presidential election on Nov. 3 is only weeks away. Florida has been a swing state that has tipped the scales in recent elections. In 2000, Florida’s outcome hinged on “hanging chads” and the matter was only resolved after a ruling by SCOTUS. That court may weigh in on the current dispute next year. In denying an appeal to overturn the Eleventh Circuit’s stay of Judge Hinkle’s order in July 2020, Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg dissented. Ginsburg died on Sept. 18, 2020.

“This court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor,” Justice Sotomayor explained in her dissent. The court’s “inaction continues a trend of condoning disenfranchisement.” (Florida has an estimated 774,000 disenfranchised felons in the state.)

For now, the voters’ will in approving Amendment 4 has been negated by Florida’s GOP-dominated legislature. Unless SCOTUS intervenes, the re-enfranchisement victory that already created a class based upon offenses has another class: the poor who have little hope of paying off their LFOs. See: Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020).

Additional source: latimes.com

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