Judge points to ‘administrative nightmare’ in voting law

October 8, 2019

Dara Kam

TALLAHASSEE --- Calling the process “an administrative nightmare,” a federal judge on Tuesday urged the Florida Legislature to revamp a state law aimed at carrying out a constitutional amendment that restores voting rights to felons who have completed their sentences.

U.S. District Judge Robert Hinkle made the comments as he finished a two-day hearing in a challenge to the law, which was passed along partisan lines by the Republican-dominated Legislature this spring and signed by Gov. Ron DeSantis. It requires felons to pay “legal financial obligations” associated with their crimes, such as fees, fines and restitution, to be eligible to have their voting rights restored.

Voting-rights advocates and civil-rights groups filed the challenge, arguing that hinging the right to vote on a person’s ability to pay money amounts to an unconstitutional “poll tax.” Plaintiffs also allege the state lacks a uniform or consistent method of applying the law, in part due to record-keeping problems and because DeSantis’ administration has provided no guidance to local elections officials on how to carry it out.

The plaintiffs have asked Hinkle for a preliminary injunction to block the law (SB 7066) and clear the way for felons unable to pay outstanding financial obligations to register to vote. During the hearing, Hinkle repeatedly found fault with portions of the law but did not issue a ruling.

“What we have now is an administrative nightmare,” Hinkle said Tuesday.

On Monday, Hinkle heard from felons who were unable to get county clerks of court to tell them the amount of their fees or fines; restitution is handled by the Department of Corrections. Hinkle said he, too, as a federal judge has encountered discrepancies with the state records. Some decades-old records may no longer exist, according to court documents.

“This is a very difficult problem,” Hinkle said. “The Legislature could make it a whole lot easier.”

Lawyers for the DeSantis administration have maintained that the law merely implements the language of the constitutional amendment, which grants voting-rights restoration to felons “who have completed all terms of their sentence, including parole or probation,” excluding people “convicted of murder or a felony sexual offense.” 

Fees, fines and restitution included in sentencing documents are part of a felon’s sentence, the defendants contend.

But Hinkle repeatedly challenged that notion while questioning lawyers on both sides during the two-day hearing.

The question of a person’s ability to pay some amount of money in exchange for voting rights --- and whether that is constitutional --- “is the starting point for me,” Hinkle said Tuesday.

The judge pointed to a footnote in a 2005 decision by the 11th U.S. Circuit Court of Appeals, in a case known as Johnson v. Bush.

The footnote came in a class-action lawsuit challenging Florida’s clemency process. While the decision in the case upheld the state’s clemency procedure, the footnote specifically addressed voting-rights issues at play in the current lawsuit.

“Access to the franchise cannot be made to depend upon an individual’s financial resources,” the appeals court’s majority wrote in the footnote. “Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims. In doing so, we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.”

The appellate ruling is “binding,” Hinkle said Tuesday, while also addressing the makeup of the Atlanta-based appeals court.

“If you think that footnote was just some wild-eyed extreme bunch of judges, you couldn’t be more wrong. … These are not judges on the fringe,” Hinkle said, before reading the names of the nine judges who made up the majority in the ruling.

Hinkle also took issue with a part of the new law dealing with an updated voter-registration form.

Previously, voters had to check a statement saying, “I affirm that I am not a convicted felon, or if I am, my rights related to voting have been restored.”

But the law passed this spring revised what is known as the “uniform statewide voter registration application,” to include three “affirmation” statements:  “(a) “I affirm I have never been convicted of a felony,” (b) “If I have been convicted of a felony, I affirm that my voting rights have been restored by the Board of Executive Clemency,” or (c) “If I have been convicted of a felony, I affirm my voting rights have been restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of my sentence, including parole or probation.”

Hinkle repeatedly demanded an explanation for the Legislature’s intent with new language, indicating he believed it was meant to discourage potential voters from registering.

“I can’t think of any legitimate reason for someone to adopt those three categories. How is it that those got into the statute?” the judge asked.

“They’re inartful,” attorney Mohammad Jazil, who represents Secretary of State Laurel Lee, acknowledged, adding that a state “workgroup” is trying to figure out how to best carry out the law and identify shortcomings.

Hinkle also seemed to reject a state argument that he would be unable to strike down the portion of the law requiring payment of legal financial obligations without overturning the entire constitutional amendment.

“Why can’t I enter an injunction that says let this plaintiff vote,” Hinkle said, referring to plaintiff Clifford Tyson, a 63-year-old minister who was unable to ascertain the exact amount of his legal financial obligations dating back to offenses more than four decades ago. “I think that’s precisely what Rev. Tyson wants.”

Seated in the front row of the federal courtroom during Tuesday’s exchange, Tyson --- who registered to vote after the amendment went into effect in January and voted in a municipal election, prior to the new state law going into effect on July 1 --- grew teary-eyed.

“It meant a lot to me. When I got to the polls and I got my ballot, I cried. I felt that same emotion (today). I shed a tear,” Tyson, who is unable to pay outstanding fees and fines of at least $1,800, told The News Service of Florida following Tuesday’s hearing.

Hinkle “saw what I felt,” Tyson said.

“And that meant the world to me, not only to me, but to a lot of Clifford Tysons out there,” he said.