After all this time, could Amendment 4 fall apart?

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home to the U.S. Court of Appeals for the 11th Circuit. Credit: Wikimedia Commons

A lawyer representing the state in an appeal over Florida’s felon voting-rights amendment argued Tuesday that the entire amendment might have to die if the court decides that making felons pay court-ordered financial obligations is unconstitutional.

That means Amendment 4, the Constitutional ballot measure approved by voters across Florida in 2018, approving felon voting rights.

Charles Cooper of the Cooper & Kirk law firm, representing Gov. Ron DeSantis and Secretary of State Laurel Lee, was responding to one of several questions from judges of the U.S. Court of Appeals for the 11th Circuit about the case’s implications.

Specifically, what happens if the court decides the amendment requires felons to pay any “legal financial obligations” — court-ordered fines, fees, and restitution before they can win back their voting rights. A statute (SB 7066) passed by the Legislature makes the requirement explicit.

A legal doctrine called “severability” allows judges to strike unconstitutional portions of laws but leave the rest intact. The rule is that the courts should invalidate only the unconstitutional language unless they conclude lawmakers would not have intended what’s left to stand alone.

“The state does not believe that Amendment 4 could be rewritten with those [financial obligation] conditions and caveats consistent with the law that governs severability in the state of Florida,” Cooper said.

Ten judges of the federal appeals court heard arguments via a live stream for about two hours as in-person voting in primaries for state and local offices commenced in Florida. More that 2 million people had already voted early and by mail.

Nancy Abudu of the Southern Poverty Law Center, part of a legal team representing individual felons and voting-rights groups, noted the day’s election as she opened the attack on the statute, noting that 80 percent of the state’s felons will never pay these obligations.

“Certainly not in time for today’s Florida primaries, not by November’s election, and many will never be able to vote under SB 7066,” she said, referring to the statute by which the Legislature interpreted Amendment 4, following voter approval in 2018.

Severability

It was the second time the severability issue had come up in the lengthy legal wrangling over the law. The first time was in December during arguments before U.S. District Judge Robert Hinkle in Tallahassee, as the Tampa Bay Times reported at the time.

Then, the state argued it would be up to the Florida Supreme Court to decide whether to strike the entire amendment if the 11th Circuit strikes the financial obligations.

Judges Barbara Lagoa and Robert Luck, lately of the Florida Supreme Court, participated in the hearing but Luck asked no questions of Cooper or plaintiffs’ attorneys. They’d rejected the plaintiff’s call for them to recuse themselves because they’d heard arguments (but did not vote) in a hearing involving the amendment before they joined the 11th Circuit.

In SB 7066, the Legislature conditioned restoration of voting rights for most felons (the amendment didn’t cover violent criminals) upon payment of those “legal financial obligations.”

Hinkle ultimately concluded that that provision was unconstitutional as applied to indigent felons. He noted that the state has incomplete records of these obligations and insufficient resources to investigate in a timely manner.

Cooper argued that the amendment clearly establishes that felons must satisfy the “full debt” imposed in their sentences and that the Legislature had a rational basis for doing so.

He suggested that trial Judge Hinkle got it wrong when he ruled that the statute punishes felons who cannot pay more harshly than those who can.

“Amendment 4 punishes no one. The financial terms of a felon’s sentence were imposed because he committed a felony, and the state’s continuing demand that he pay them is not some new and different punishment,” Cooper said.

Rather, the amendment offers a path to voting rights that the state was not obliged to offer under longstanding U.S. Supreme Court precedent, he continued. And in lifting the financial obligation off those who cannot pay, the trial judge “effectively commutes” that obligation for them.

Furthermore, an earlier ruling by a three-judge panel of the 11th Circuit, in upholding a temporary injunction blocking enforcement the statute, improperly concluded that felons “have a right of access to the ballot box, but they do not. They lost that right upon their conviction,” Cooper said.

The full circuit later lifted that injunction pending its ruling in the case.

Alternate avenues

Members of the court including Lagoa noted that Florida law provides alternative avenues for voting rights restoration, including petitioning the sentencing court to convert financial penalties to community service and the established clemency process under the governor and Cabinet (which haven’t held a single clemency hearing this year).

Attorneys representing the plaintiffs responded that those avenues depend on the discretion of third parties and often are “illusory for most people,” as Julie Ebenstein of the ACLU put it, including for people whose obligations have been unloaded on debt-collection agencies.

Lagoa pressed Ebenstein on severability. Courts have the authority to do that, especially if a provision contains a specific language allowing them to purge problematic language while leaving the rest.

Lagoa noted that Amendment 4 lacks such a clause.

“There has to be some independent basis to be able to strike something out,” Lagoa said.

Ebenstein disagreed. “Amendment 4 can still serve the primary purpose” of voting restoration, she said.

In fact, nowhere does the amendment literally impose legal financial obligations — the actual wording is that “voting rights shall be restored upon completion of all terms of sentence including parole or probation.”

“Financial obligations are nowhere mentioned in the text of the amendment, in the ballot title of the amendment, and the summary of the amendment,” Ebenstein said.

Later, Ebenstein specified that the plaintiffs are challenging the statute, not the amendment. The law, she said, “sets up a scheme in which the secretary of state and the supervisors of elections are tasked with making eligibility determinations and they have been universally unable to make a single eligibility determination,” Ebenstein said.

That’s because the state lacks any database of records of financial obligations that officials can refer to.

“It’s a challenge to the substantive system that this statute sets up that is not compliant with the requirements of due process,” she said.

State advice to felons

Cooper said at one point that the state has been providing advisory opinions to felons concerning their debts in line with Hinkle’s order, even though the 11th Circuit enjoined the order. Officials were using a process that predated the order, Cooper said.

Ambiguities in the records are decided in favor of the felons, he said. Additionally, they can register and vote in they believe in good faith that they have satisfied their obligations, subject to later investigation by the state.

It wasn’t clear from the arguments what would happen if the state concludes they voted improperly.

He also insisted that “completion of all terms of sentence including parole or probation,” contained in the amendment, refers to “within all four corners” of a sentencing document, including financial obligations. That makes them punitive and not an unconstitutional poll tax under the 24th Amendment, he said.

“All means all,” he said. The Florida Supreme Court took that position in an advisory opinion for DeSantis and “I don’t think the Florida Supreme Court could have interpreted any other way,” Cooper said.

That opinion, issued in January after Lagoa and Luck had left the court, said felons needed to meet the financial obligations.

Judge Charles Wilson noted that Judge Hinkle concluded that voters would have approved the amendment even if they’d known it wouldn’t require payment of financial obligations.

Cooper argued it’s impossible to reach that conclusion.

“For the courts to decide that the people of Florida would have said yes to that … I think is really quite implausible,” he said.

As the hearing closed, Chief Judge William Pryor noted a failure in the live stream that forced an interruption in the proceeding early on.

“We apologize to the public that that live stream was not available,” Pryor said. “I don’t know whether it ever became available again but, if it didn’t, we will certainly make sure that the video of this argument is posted.”

 

State’s lawyer suggests Amendment 4 could fall if appeal court strikes financial obligations for felons