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High Court Asked To Lift Stay In Florida Felons Voting Case

Miami Herald file
Miami Herald

TALLAHASSEE --- Plaintiffs in a Florida voting-rights case have asked the U.S. Supreme Court to vacate an appeals-court decision that would prevent hundreds of thousands of felons from registering and voting in next month’s primary elections and could keep them from casting ballots in November.

The 11th U.S. Circuit Court of Appeals last week put on hold a ruling by U.S. District Judge Robert Hinkle that found the state cannot deny voting rights to felons who cannot afford to pay court-ordered financial obligations associated with their convictions.

On Wednesday, the Atlanta-based appellate court scheduled arguments in the case for Aug. 18, the same day as Florida’s primary elections.

Plaintiffs’ lawyers hours later asked the U.S. Supreme Court to lift the appellate court’s stay of Hinkle’s ruling, “so that the August and November elections are not undermined by chaos and disenfranchisement.”

The legal wrangling comes in a challenge to the constitutionality of a 2019 Florida law that required felons to pay “legal financial obligations” --- fines, fees, restitution and costs --- associated with their convictions to be eligible to vote. The law, approved by Republican lawmakers and signed by Gov. Ron DeSantis, was aimed at carrying out a 2018 constitutional amendment that restored the voting rights of felons “who have completed all terms of their sentences, including parole and probation.”

In a May ruling, Hinkle laid out a process that would allow hundreds of thousands of felons who have outstanding court-ordered debt to be able to register and vote in the August primaries and Nov. 3 presidential election. DeSantis appealed the decision, and the 11th Circuit granted the governor’s rare move of seeking an “en banc,” or full court, initial review of the case. Three-judge panels almost always conduct initial reviews of federal appeals.

The Atlanta-based appellate court’s July 1 order also put a stay on Hinkle’s decision, as requested by DeSantis.

In Wednesday’s motion at the Supreme Court to vacate the stay, the plaintiffs’ lawyers argued that blocking Hinkle’s ruling from going into effect “creates chaos and confusion about who can and cannot vote, where a wrong guess creates the risk of criminal prosecution.”

“Not only has this thrown the election rules into chaos (with nearly one hundred thousand registered voters and three-quarters of a million citizens now uncertain of their eligibility to vote), it has revived the risk --- and attendant chill --- of prosecution for citizens who worry they will guess wrong about how much (if anything) they must pay to vote,” attorneys for the Campaign Legal Center wrote in Wednesday’s motion, which was joined by other organizations that are plaintiffs in the case.

The decision to put a stay on Hinkle’s ruling is contrary to a previous decision in the case that a panel of the 11th Circuit issued earlier this year, the lawyers argued.

In February, a three-judge panel upheld a preliminary injunction issued by Hinkle. The appeals court then refused the state’s request for a full court review of the panel’s decision.

“Consider the plight now thrust upon three-quarters of a million would-be voters,” the plaintiffs’ lawyers wrote on Wednesday. “In addition to having to guess (under threat of criminal prosecution) how much (if anything) they must pay to vote, now they must venture a second guess: which 11th Circuit decision tells them whether Florida may constitutionally require them to pay money they cannot afford in order to vote?”

The situation “is not tenable,” the lawyers added.

“Tens of thousands of people” already registered to vote have requested mail-in ballots, and absentee ballots are being sent to voters overseas, the lawyers said. Elections officials began sending domestic mail-in ballots to voters on Thursday.

“Supervisors of elections have no way to determine which among the millions of vote-by-mail applications should not be fulfilled pursuant to the Eleventh Circuit’s stay order, because the state has not yet determined for even a single voter whether they must pay to vote, and if so, how much,” the plaintiffs argued.

Testimony from county elections officials, clerks of court, felons and scholars throughout an eight-day trial in May spotlighted the difficulty in ascertaining whether people who were convicted of felonies owe money. Court records, especially in older cases, can be contradictory or incomplete. Databases are difficult to navigate. People sometimes have to pay to obtain the records.

In his May 24 ruling, Hinkle said the state “has shown a staggering inability to administer the pay-to-vote system.” His decision laid out a process that would allow the vast majority of felons to register and vote in the upcoming elections.

“The district court remedied the chaos inherent in the pay-to-vote system. The Eleventh Circuit resurrected that chaos, and then multiplied it,” the plaintiffs’ wrote Wednesday.

To bolster their argument, the plaintiffs pointed to a previous U.S. Supreme Court decision in a case known as Purcell v. Gonzalez. The so-called “Purcell Principle” established that courts should be wary of making changes to elections rules in the period leading up to the election, to avoid confusion for voters and elections officials.

The stay on Hinkle’s ruling not only keeps affected Floridians from participating in the Aug. 18 primary elections but also could prevent them from voting on Nov. 3. The deadline to register to vote in the fall elections is Oct. 5. Rulings from appellate courts can come months after arguments are heard.

The voting-rights case is drawing national attention for its potential impact on the outcome of the match-up between President Donald Trump and presumptive Democratic presidential nominee Joe Biden. With a history of razor-thin election margins, a Florida victory is considered critical for a White House win by both parties.

Wednesday’s Supreme Court filing, submitted to Justice Clarence Thomas for procedural reasons, urges the court to allow Hinkle’s order to go into effect.

“This case involves three-quarters of a million people who are otherwise eligible to vote but for the state’s system of wealth discrimination, imposition of an unconstitutional poll tax, and the incapable administration of a system that deprives people notice of their eligibility, forces them to risk prosecution if they hazard the wrong guess … and deters eligible citizens from voting,” the plaintiffs argued.

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