Federal judge blocks state from blocking felon voting rights based on their inability to pay fees

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

A federal judge ruled Sunday that Florida’s process for allowing felons to recover their right to vote under Amendment 4 violated the U.S. Constitution to the extent that it predicates that right on their ability to pay court costs, fees, and restitution.

U.S. District Judge Robert Hinkle, in a 125-page ruling that scathingly dismantles the state’s defense of a state law implementing the 2018 state constitutional amendment, rejected arguments by former felons and civil rights groups that the law was racially motivated and discriminates against women.

But Hinkle concluded that the law violated the 24th Amendment, which bars conditioning the right to vote on payment of a “poll or other tax.”

“This order holds that the state can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs,” he wrote.

The judge imposed a framework for returning felons to follow in seeking their voting rights. It says that if they are unsure about their status, they can ask the Florida Division of Elections for an advisory opinion. If they don’t get an answer within 21 days, they may register.

“A class member may proceed based on the presumption and in reliance on this order without requesting an advisory opinion. An advisory opinion is an option, not a requirement,” Hinkle wrote.

Hinkle had already telegraphed his intentions during closing arguments on May 6. He’d already enjoined the state from enforcing the 2019 implementing law adopted by the Republican-dominated Legislature and been upheld on that score by a federal appeals court.

Critics called the law a poll tax. Hinkle disagreed — technically.

“Florida has not, of course, explicitly imposed a poll tax. The financial obligations at issue were imposed as part of a criminal sentence. The obligations existed separate and apart from, and for reasons unrelated to, voting. Every court that has considered the issue has concluded that such a preexisting obligation is not a poll tax,” he wrote.

But he singled out Florida’s system of assessing fees against criminal defendants for use of, for example, public defenders or their burden on the court system.

“In sum, the fees are assessed regardless of whether a defendant is adjudged guilty, bear no relation to culpability, and are assessed for the sole or at least primary purpose of raising revenue to pay for government operations — for things the state must provide, such as a criminal-justice system, or things the state chooses to provide, such as a victim-compensation fund. A tax by any other name,” Hinkle wrote.

“The takeaway: it is certain that some eligible voters will choose not to vote because of the manner in which the state has administered — and failed to administer — the pay-to-vote system,” he wrote.

“But one cannot get blood from a turnip or money from a person unable to pay. And the state has far better ways to collect amounts it is owed. Moreover, one might well question the legitimacy of the state’s interest in leveraging its control over eligibility to vote to improve the state’s financial position.”

And he criticized the state’s failure to set up a system for screening legal financial obligations imposed against felons — many on convictions years old and poorly documented — in a presidential voting year.

“With a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s,” Hinkle noted.

“The takeaway: 18 months after Amendment 4 was adopted, the Division [of Elections] is not reasonably administering the pay-to-vote system and has not been given the resources needed to do so.”

He criticized language in Florida’s voting registration form that warns that felons improperly registering are committing a felony, without defining what would make their registration illegal.

“The form is indefensible, provides no opportunity for some eligible felons to register at all, and is sure to discourage others,” he wrote.

“It is so obviously deficient that its adoption can only be described as strange, as was the Legislature’s failure to correct it after the state was unable to defend it in any meaningful way in this litigation and actively sought a legislative cure.”