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State asks judge to toss felon voting case

Dara Kam

August 5, 2019

TALLAHASSEE --- Florida Gov. Ron DeSantis and Secretary of State Laurel Lee are asking a federal judge to dismiss a challenge to a new law about restoring the voting rights of felons who have completed their sentences, arguing that the case belongs in state --- not federal --- court.

The request from attorneys for the state came as voting- and civil-rights groups asked the judge to block provisions of the law from going into effect while the case works its way through the courts.

The Legislature passed the law this spring to carry out a November constitutional amendment designed to restore the voting rights of felons. Voting- and civil-rights groups went to federal court contending that the law improperly ties restoration of felons’ voting rights to their ability to pay financial obligations --- what critics of the law have described as a “poll tax.”

DeSantis and Lee, however, argue that U.S. District Judge Robert Hinkle should dismiss the case.

“State courts should say what state law is,” lawyers for the state argued in court filings Friday. “Florida courts should resolve the meaning of the state Constitution before these cases proceed.”

More than 64 percent of Floridians approved what appeared on the November ballot as Amendment 4. The amendment granted restoration of voting rights to felons “who have completed all terms of their sentence, including parole or probation.” The amendment excluded people “convicted of murder or a felony sexual offense.”

The interpretation of “all terms of their sentence” became a flashpoint during this spring’s legislative session as lawmakers struggled to reach consensus on a measure to carry out the amendment.

The new law requires all “financial obligations” ordered by the court as part of a sentence --- including fines, fees and restitution ---to be repaid in full for voting rights to be restored. The law also allows judges to modify financial obligations other than restitution that were part of sentences. And the law allows judges to convert financial obligations to community service hours. Under that scenario, financial obligations are considered paid in full once community service is complete.

The legal salvos fired in the federal legal challenge echo the fiery debate during the legislative session.

Plaintiffs in the case argue that hinging voting rights on a person’s ability to pay financial debts amounts to an unconstitutional “poll tax” and is a vestige of Jim Crow-era laws aimed at keeping blacks from casting ballots.

But the state maintains that the new law is more lenient than the terms of the amendment.

“The constitutional text is arguably more restrictive because it makes no provision for sentencing documents, modification of sentences, or a favorable construction for re-enfranchisement,” the state’s lawyers wrote in Friday’s 21-page motion to dismiss the case.  

And, even if that’s not the case, the federal court should refrain from acting until a state court decides whether the new law properly upholds the constitutional amendment.

A Florida court “should first resolve the meaning of the state Constitution” before the federal court “decides whether the state statute --- purporting to track the intent of the state Constitution --- violates the federal Constitution,” the state’s lawyers concluded.

As they defend the law, attorneys for DeSantis and Lee are mirroring arguments made by Republican legislators who drafted it.

The state, in Friday’s motion, pointed to language that the amendment’s backers used in addressing the Florida Supreme Court and Lee.

During arguments before the state court in 2017, Supreme Court Justice Ricky Polston asked Jon Mills, a former University of Florida law school dean and onetime speaker of the Florida House who helped craft the amendment, whether “all terms” of a sentence included “full payment of any fines.

Mills replied that “all terms means all terms within the four corners” of the sentencing document, including restitution.

After the amendment was passed, supporters of the amendment wrote to Lee that “completion of all terms of sentence” includes “any period of incarceration, probation, parole and financial obligations imposed as part of an individual’s sentence.”

The financial obligations “may include restitution and fines,” the American Civil Liberties Union of Florida, the League of Women Voters of Florida, which is one of the plaintiffs in the federal lawsuit, and others wrote in December.

Now, the state accuses backers of the amendment of changing their position.

“The Florida Legislature, the amendment’s sponsor, other proponents of the amendment, and, until recently, at least a plaintiff organization have asserted that the phrase ‘all terms of sentence’ means one thing; plaintiffs now allege it means another,” state lawyers, who used the letter to Lee as an exhibit in Friday’s motion, wrote.

Plaintiffs in the case, meanwhile, are asking Hinkle to block the legislation (SB 7066), which they allege unconstitutionally creates “two classes” of would-be voters --- those who can afford to pay their financial obligations and those who cannot.

Some Floridians affected by the amendment --- referred to as “returning citizens” --- have already registered to vote and cast ballots in municipal elections since the law went into effect in January, the lawyers argued.

“If not enjoined, SB 7066 will wreak havoc on election administration, apply unequally to similarly situated voters, lead to the erroneous deprivation of the right to vote, and undermine confidence in Florida elections,” lawyers for the plaintiffs --- who include individuals, voting-rights groups and civil-rights organizations --- wrote in an 88-page motion Friday for a preliminary injunction. “Florida cannot be permitted to deny the right to vote to hundreds of thousands of Floridians on the basis of law that it has no plan to implement in an accurate and uniform manner.”

Fewer than one in five of up to 1.4 million “returning citizens” have repaid all of their outstanding financial obligations, the plaintiffs wrote, relying on an analysis performed by University of Florida political scientist Daniel Smith.

And Florida’s patchwork of databases contain conflicting information about outstanding fees owed by returning citizens, the plaintiffs argued, pointing to instances in which separate systems within the same county showed an individual owing differing amounts of money.

“Even assuming that returning citizens ask the right questions, in many cases they will still be unable to determine their LFOs (legal financial obligations) and voter eligibility because … county clerks simply do not have complete or accurate records, and there is no alternative, public source of information readily available,” the plaintiffs’ lawyers wrote.