FL Supreme Court advisory opinion on Amendment 4 is a win for governor, GOP; voting rights advocates vow to fight on

The Florida Supreme Court. Photo by Colin Hackley.

The Florida Supreme Court sided with Gov. Ron DeSantis and legislative Republicans in an advisory opinion issued Thursday in which the court said 2018’s Amendment 4 requires ex-felons to pay any fines, fees, or restitution before they recover their right to vote.

The five-member court (there are two vacancies at the moment) was unanimous on the point, although Justice Jorge Labarga wrote a dissent regarding the majority’s embrace of a strict “textualist” approach – as favored by conservative legal scholars and judges – in interpreting the Florida Constitution.

In that sense, the case marked a turning point for a court – thanks to appointments by conservative Republican DeSantis – now dominated by judicial conservatives.

The case turned on what Amendment 4’s sponsors meant when drafting language restoring voting rights “upon completion of all terms of sentence including parole or probation.” DeSantis and the Legislature argued that “all terms” include “legal financial obligations” – meaning fines, fees, and restitution.

Activists rallied for Amendment 4 outside a federal court in Tallahassee on Monday, Oct. 7, 2019.

DeSantis used his Twitter feed to praise the outcome. “I am pleased that @FLCourts confirms that Amendment 4 requires fines, fees & restitution be paid to victims before their voting rights may be restored. Voting is a privilege that should not be taken lightly, and I am obligated to faithfully implement Amendment 4 as it is defined,” he wrote.

The courts’ advisory opinion drew a quick response from felon voting rights advocates and lawyers who have gone to court on the Amendment 4 issue.

“The Florida Supreme Court’s advisory opinion does not – indeed, cannot – alter what the U.S. Constitution requires. A federal court has already held that the state cannot deny people the right to vote because of their inability to pay financial obligations,” voting rights organizations declared in a joint written statement. They are the American Civil Liberties Union, the Brennan Center for Justice at NYU School of Law, and the NAACP Legal Defense and Educational Fund, which argued against the financial requirements in the court case.

“The U.S. Constitution also prohibits making voting rights contingent on the payment of taxes, and it requires Florida to provide due process to citizens before taking their voting rights away,” the groups said. A state law requiring such payments “violates these prohibitions, and nothing about the Florida Supreme Court’s opinion changes that.”

In addition, “This advisory opinion does not impact our ongoing federal litigation to secure the voting rights of hundreds of thousands of returning citizens,” the organizations said.

League of Women Voters of Florida president Patricia Brigham expressed disappointment.

“The U.S. Constitution prohibits making the right to vote contingent on the payment of obligations that people cannot afford. The prohibition of making the right to vote contingent on the payment of taxes is also clearly outlined as unconstitutional,” Brigham said in a written statement.

“The League of Women Voters of Florida will continue to urge the state Legislature to use its power to fix this. The League will also continue to stand strong on the ideal that a citizen’s bank account should never be what determines whether they can participate in our democracy. The Legislature must abide by the U.S. Constitution when deciding when a sentence is complete. If they choose not to, we are confident the federal courts will.”

Although the amendment’s sponsors had argued in advance of the election that felons would need to meet such monetary obligations, the voting rights organizations argued before the court that the language referred to “durational periods,” or actual time behind bars or on probation.

In an unsigned majority opinion, the court repudiated its own precedents seeking to ascertain the intention of framers and voters when interpreting amendments to the Florida Constitution.

“We believe that such statements can be misleading because they may be understood to shift the focus of interpretation from the text and its context to extraneous considerations. And such extraneous considerations can result in the judicial imposition of meaning that the text cannot bear, either through expansion or contraction of the meaning carried by the text,” the court said.

“We therefore adhere to the ‘supremacy-of-text principle’: ‘The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means,’” the court said, quoting the late conservative judicial icon Antonin Scalia.

As for the question before it, “[a]bsent any suggestion in the context of Amendment 4 that the word ‘sentence’ carries a technical meaning restricting its scope, there is no basis to conclude that ‘all terms of sentence’ excludes any [legal financial obligations] ordered by the sentencing judge,” the court said.

“And when viewed in context, ‘all terms of sentence’ has only one natural reading – one that refers to all obligations, not just durational periods.”

Labarga spelled out his objections to strict textualism in his dissent.

“I agree with the majority that the lodestar of constitutional and statutory interpretation should be, in the first instance, the application of the words of the governing text read in context. However, the analysis should provide some allowance for consideration of the intent of the framers and voters in instances where it will assist in elucidating the meaning of the text in question,” he wrote.

“Indeed, without the existence and consideration of the extrinsic evidence concerning the intention of the sponsor and others involved in the process of proposing Amendment 4, based on this record, I could not concur with the majority based solely on the theory that ‘the only objective evidence for the intent of a text is what the text says understood in context’ – not in this case.”

The court also rejected arguments by the organizations involved that it was improper to issue an advisory opinion in the case, saying, ‘We note that this court since 1968 has issued advisory opinions to the governor addressing the validity of legislation that affected his executive powers and duties.”

The justices heard arguments on the matter in November, when justices Barbara Lagoa and Robert Luck still sat on the court. The two subsequently were elevated to the U.S. Court of Appeals for the 11th Circuit. The advisory opinion, the remaining justices said, was intended to help the governor meet his constitutional obligation to “take care that the laws be faithfully executed” and would not preclude future litigation.

The case has also traveled to federal court, where U.S. District Judge Robert Hinkle ruled in October that requiring felons to pay restitution and fines regardless of their ability to pay raises questions under the U.S. Constitution.

Editor’s note: This story has been updated to include Gov. DeSantis’ reaction.