Federal appellate judges Barbara Lagoa and Robert Luck have refused to withdraw from an appeal involving voting rights for former Florida criminal offenders notwithstanding their participation in a hearing over the issue while still on the Florida Supreme Court.
In a 25-page order handed down Monday, the judges said the Code of Conduct for U.S. Judges does not mandate their withdrawal because the state Supreme Court hearing in which they participated was a different legal matter to the appeal now before them as members of the U.S. Court of Appeals for the 11th Circuit.
The rights of perhaps hundreds of thousands of people convicted of felonies to vote in the November general election in the largest political swing state depend on how the case turns out.
Most of the 12 members of the 11th Circuit have voted to hear the case and have set arguments for Aug. 18 — the date of primary elections in state and local races in Florida.
Specifically, Lagoa and Luck wrote, the state Supreme Court case involved an advisory opinion to Gov. Ron DeSantis on a narrow interpretation of language in Amendment 4 to the Florida Constitution, adopted in 2018, to restore voting rights to most people convicted of felonies upon payment of “financial legal obligations,” defined as fines, fees, and restitution.
At issue before the 11th Circuit now is a challenge under the U.S. Constitution to that requirement for people unable to pay those obligations, Lagoa and Luck wrote.
“Appellees have not pointed to either judicial or extrajudicial statements that meet the legal standard requiring recusal under [the conduct code],” the two wrote.
“An objective, disinterested lay person, knowing that we asked questions in a different proceeding (advisory vs. case-and-controversy), in a different court (Florida Supreme Court vs. federal court), with different issues (interpreting the state constitution vs. federal constitutional questions), and with different participants (“interested persons” vs. parties), would not reasonably entertain a significant doubt about our impartiality in this case,” they concluded.
Florida allows such advisory opinions but the federal courts do not, they wrote. In advisory proceedings, “There is no trial or intermediate appeal. No facts are developed for the record — there is no record. The opinion of the state Supreme Court, as the name suggests, is advisory only.”
Although they participated in oral arguments regarding the advisory opinion, they’d been confirmed to the federal court before the state’s justices ruled in DeSantis’ favor.
The 11th Circuit case, Jones v. DeSantis, is a class action challenging the law interpreting the amendment on behalf of active litigants — voting rights groups and individuals with felony convictions who allege the law harms them through what amounts to an unconstitutional poll tax.
U.S. District Judge Robert Hinkle in Tallahassee ruled that the law violated the U.S. Constitution because it predicates voting rights on the ability to pay those financial obligations regardless of whether the person has the means to pay.
The plaintiffs, including former felons and voting rights groups, sought Lagoa’s and Luck’s recusal, and Democrats in the U.S. Senate wrote to the judges asking how their participation squared with their assurances during confirmation hearings that they would bow out of cases they’d been involved with previously.
As for those assurances, “Our statements to the [U.S. Senate Judiciary] Committee expressly use the word ‘case’ to refer to a case pending before this court,” Lagoa and Luck wrote.