A contentious civil rights trial is slated to start next Monday in federal court. On the one side sits the state of Florida and a slew of other states supporting it.
On the other, thousands of potential voters who are currently barred from participating in elections because of the one thing they lack: money.
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Depending on the way the court rules, all those potential voters could be newly eligible to register to vote in Florida before the presidential election in November.
The much-anticipated class action trial is the culmination of a multi-year grassroots campaign to end Florida’s lifelong ban on voting for people with felony convictions. In 2018, voters passed Amendment 4 with nearly 65 percent of the vote. That amendment to the state constitution automatically restored voting rights to most people with felony convictions, after they complete “all terms of their sentence.”
In the wake of that addition to the state constitution, state lawmakers passed a bill defining “all terms” as meaning all fines, fees and restitution connected to a case have to be paid before someone regains the right to vote.
Florida has already lost several steps in the legal battle that followed Gov. Ron DeSantis signing that bill. U.S. District Judge Robert Hinkle, who will be hearing the case, sided with the seventeen named plaintiffs in a temporary ruling. He said anyone who is “genuinely unable” to pay what is owed should be able to vote. That temporary ruling was shot up to a federal appeals court, which also ruled against the state.
“We should never in a democracy be trading votes for dollars, and that is effectively what the legislature has done,” said Lisa Foster, a co-founder of the Fines and Fees Justice Center.
The national group is looking to reform the role money plays in the criminal justice system. Foster’s group has been following the case but has not filed any court documents into the record.
An estimated 82 percent of all people with felony convictions have not yet paid the money they owe, according to expert witness testimony submitted in the case by University of Florida professor Daniel Smith.
The data he analyzed only incorporated 48 out of 67 Florida counties, and did not account for people who were too poor to pay. Smith said overall it was “practically impossible” to quantify how many people might not be able to vote under the new law because of sloppy, decentralized recordkeeping from the state.
The state has repeatedly admitted in court that it has no centralized way of tracking what payments are owed, or even which payments have already been made. Several of the plaintiffs in the case say they have been unable to get answers on how much money is still owed.
“I don't know where you go, a one-stop shop, to get something that says you've paid all your fines and fees,” Toshia Brown, the chief of Voter Registration Services at the Department of State’s office, said in a sworn deposition. “I don’t know how they would be able to get that information.”
For Foster, with the Fines and Fees Justice Center, the faulty recordkeeping is another dagger in the heart of the state’s insistence that money owed needs to be paid before someone can get back the right to vote.
“If you can’t vote unless you pay back what you owe, but the state can’t tell you how much you owe — then you’ll never get your constitutional rights restored,” she said.
Politically, the split with the case has largely fallen along party lines. Democrats broadly support granting voting rights to people who still owe money, while Republicans do not.
“The government trying to squeeze those individuals out, that is a government run amok,” said Arthur Rizer, an attorney with the Libertarian think tank R-Street Institute. His group has filed a document in support of the plaintiffs in the case.
A lifelong conservative, Rizer said Florida’s Republican-controlled government is on the wrong side of the civil rights battle.
“If you boil what conservatism is down to its most basic principle, it is a government that cannot act arbitrary and capricious against its people. A limited government,” he said. “And besides putting you in jail, putting you in prison, the most powerful thing a government can do is strip your right to participate in the democratic process.”
Supporters of the state say the arguments being used against the new law are misguided.
“There’s a whole lot of crime victims in Florida — regular people — sometimes people in the communities hardest hit by crime, that aren’t ever gonna get the restitution if the plaintiffs have their way,” said J. Christian Adams, the president of Public Interest Legal Foundation. The group submitted documents supporting the state in the case.
To Adams and other supporters, it largely comes down to a question of state’s rights.
“If a state says you can’t get your civil rights back until you pay your victims, the states have the power to do that, and it’s not some sort of Jim Crow conspiracy like the plaintiffs have presented in this case,” said Adams.
Florida has barred people with felony convictions from voting since 1868, a few short years after the Civil War. Until Amendment 4 passed in 2018, it was one of only three states in the nation that barred people with felony convictions from voting for life. For years the only way to get rights restored was through the state’s clemency board, made up of the governor, attorney general, chief financial officer and agriculture commissioner. But the rate of people being granted clemency varied widely depending on who was in office.
A federal judge in 2018 ruled that the state’s clemency process was unconstitutional, highly politicized, and disproportionately stacked against African Americans.
Currently, 30 states require someone with a felony conviction to pay fines, fees and restitution before they regain the right to vote. For that reason, attorneys general in Alabama, Arizona, Arkansas, Georgia, Kentucky, Louisiana, Nebraska, South Carolina, Texas and Utah have jointly submitted documents in support of Florida in the case, after a panel in a federal appeals court ruled against the state.
The states argue that they have a “substantial interest” in seeking money before someone gets the right to vote restored, and that the case could set legal precedent against those interests.
“If States are limited in their ability to pursue reenfranchisement alongside their other interests, some States may well throw in the towel and prohibit any felon from regaining the right to vote,” they wrote.
Attorneys general in all of the above states declined requests to comment further on the case. The office of DeSantis, a named defendant in the case, did not respond to requests for comment.
Judge Hinkle has granted class status to the seventeen named plaintiffs, meaning that any decision would apply to an unknown hundreds of thousands of people in Florida who cannot pay the money they owe. The judge has hinted that if the state does not act, he might have to come up with a court-ordered solution for how to determine if someone is able to pay or not.
Hinkle has accused the state of trying to “run out the clock” of the case, and has stated he aims to resolve the issues before the November presidential election.
Florida Secretary of State Laurel Lee, another defendant in the case, declined to directly comment on the ongoing litigation. But her office passed along a case brief arguing the definition of "all terms" of a sentence created by the state law directly mirrors the impact of Amendment 4 itself. If the law is struck down as unconstitutional, all of Amendment 4 should be struck down, the argument goes. The Florida Supreme Court has unanimously accepted this interpretation of how "all terms" of a sentence should be interpreted, but did not comment on the possibility of striking down the entire grassroots ballot measure.
The outcome of the trial largely will come down to framing, argues Jason Snead, the executive director for the Honest Elections Project, a group that supports the state of Florida in this case.
“Clearly, wealth-based barriers to voting would violate the constitution,” said Snead. “This is obviously one of those cases where the folks bringing the action want us to view it through that lens. But I think actually the proper lens here is to see this as a question of part of the criminal sanction.”
In that view, money is just incidental to completing a court sentence, it’s not the main consideration.
Due to COVID-19, the trial will largely take place over the phone, and people across the nation will be able to listen in. Typically, federal district courts have a blanket ban on court proceedings being recorded or broadcast.
“This is the issue I worked hardest and longest on,” said Howard Simon, the former director of the American Civil Liberties Union of Florida, who retired just after Amendment 4 passed in 2018. “I’ll definitely be calling in.”