Federal appeals court sides with ex-felons on enforcing voter rights

Voting booths are set up on the campus of University of South Florida as workers prepare to open the doors to early voters on October 22, 2018 in Tampa. Photo by Joe Raedle/Getty Images.

A federal appeals court has rejected Gov. Ron DeSantis’ defense of a state law that blocks ex-felons from voting unless they have paid all court-ordered fines, fees, and restitution.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in an unsigned opinion published Wednesday, said the law unfairly punishes people merely because of their inability to pay such financial obligations.

“The felon with money in the bank will be re-enfranchised. But the felon who can’t will continue to be barred,” the court said. “Merely because the state could strip the rights of both felons does not mean it can continue punishment for some and not others.”

The Republican-dominated Legislature approved the law last year to implement Amendment 4, the voter-approved constitutional amendment that potentially could have restored voting rights for 1.4 million former felons. The financial restrictions were expected to whittle that number down decisively.

Helen Aguirre Ferré, communications director to DeSantis, said via her Twitter feed: “We disagree and will appeal en banc.” In other words, ask the full federal appeals court to overrule the panel. Failing that, the next stop would be the U.S. Supreme Court.

By contrast, civil rights organizations praised the outcome.

“This is a great win for voting rights!” said Myrna Perez, director of the Voting Rights and Elections program at the Brennan Center for Justice at the New York University School of Law, which supported the challenge to the law along with the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund.

“The 11th Circuit told the state of Florida what the rest of America already knows. You can’t condition the right to vote on a person’s wealth,” she said in a written statement.

The ruling upheld a injunction issued by U.S. District Judge Robert Hinkle in Tallahassee partially blocking enforcement of the statute, with the appeal court rejecting the defense of the law mounted by DeSantis and his administration on virtually every point.

The appellate ruling came too late for ex-felons to register to vote in Florida’s Democratic and Republican presidential primary elections, coming on March 18, but the books are still open for people hoping to vote in the general election this fall.

With thousands of ex-felons unsure of their rights, some county supervisors of elections are urging people to register if they believe in good faith that they are eligible.

The appeals court noted that nothing in the injunction bars the state from establishing procedures to clear ex-felons to vote. Additionally, Hinkle “did not define the term ‘genuine inability to pay,’ again leaving it to the state to make a reasonable, good faith determination of how it could implement that term consistent with the court’s order. In short, the court’s order left the state with substantial discretion in choosing how to comply.”

But the bottom line for the court was this: The state enjoys the constitutional authority to withhold the franchise for former felons, but not according to their ability to pay.

“The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement — as the voters of Florida plainly did — it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny,” the court said.

Hinkle limited his injunction to the 17 inmates who filed the case before him. They’ve moved to expand the case into a class action, to encompass every felon unable to pay their financial obligations, but the judge has yet to decide whether to allow that.

The legal dispute has been raging in state court, too. The Florida Supreme Court issued an advisory opinion on Jan. 16 upholding the state law in question.

The 11th Circuit acknowledged that the state high court, the “final arbiter” of state law, had concluded that the statute properly interpreted the amendment.

But in interpreting the U.S. Constitution, the court ruled that the state failed to meet even the lowest possible burden of proof – that the law is rationally related to a legitimate state interest.

The court noted that possible alternatives posed by the state as available to ex-felons — persuading victims to waive restitution, converting fines into community service, or securing executive clemency — are no alternatives at all. For example, court clerks commonly convert unpaid fines to liens held by third parties who are unlikely to forgo repayment, the court said.

Judges Barbara Lagoa and Robert Luck — appointed by DeSantis to the Florida Supreme court but since elevated to the 11th Circuit — did not participate in the ruling. They would play a part, however, if the full appeals court does agree to hear the case.

Florida Commissioner of Agriculture and Consumer Services Nikki Fried, the only Democrat serving on the state Cabinet, which helps DeSantis decide clemency requests, welcomed the ruling.

“I urge the governor to drop further appeals that deny Floridians their right to the ballot,” Fried said in a written statement. “And, once again, I call on my clemency board colleagues to adopt new clemency rules that would automatically restore voting rights for non-violent ex-felons. We don’t have to wait on litigation or legislation. We can restore voting rights immediately. And we must.”

“This law is a modern-day poll tax,” said said Julie Ebenstein, senior staff attorney with the ACLU’s Voting Rights Project. “This ruling recognizes the gravity of elected officials trying to circumvent Amendment 4 to create roadblocks to voting based on wealth.”

“Today’s decision protects against Florida’s efforts to crassly undermine the historic citizen-led voter initiative that restored voting eligibility to more than 1.4 million individuals,” said Leah Aden, deputy director of litigation, NAACP Legal Defense Fund.

“By affirming a preliminary finding that predicated the ability to vote based on wealth is unconstitutional — particularly when black people with felony convictions disproportionately lack access to wealth — we are able to continue our fight to ensure that ultimately all Floridians whose voting rights were rightfully restored through Amendment 4 can exercise that right.”