If requiring felons to pay all their legal fees before regaining voting rights is unconstitutional, then so is the 2018 amendment voters approved that allows felons to vote, attorneys representing the state of Florida said Tuesday before the U.S. 11th Circuit Court of Appeals.
Attorney Charles Cooper argued Amendment 4, as presented to voters, specifically said the right to vote would be restored after all “all terms of sentence” were completed.
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“The voters decided that the right to vote of a person who lost it as a consequence of his conviction of a felony should be restored only if he has paid the full debt he owes to society,” he said.
Cooper said conditions cannot be removed, or severed, and other requirements backloaded into it, without the entire amendment being struck down as unconstitutional.
“The state does not believe Amendment 4 could be rewritten with those conditions and caveats consistent with the law that governs severability,” he said.
With Floridians voting Tuesday in primary elections and President Donald Trump creating angst over mail-in voting, the legalities of a 2019 state law regarding felons voting is among high-profile battles over ballot access being waged nationwide before November’s election.
The 11th Circuit’s ruling could determine whether a projected 774,000 of Florida’s 1.4 million felons can register by Oct. 3 for the general election, although a losing side’s appeal to the U.S. Supreme Court would make it unlikely to happen.
The Atlanta-based appellate court is deliberating via video hearings Florida’s appeal of a May ruling by U.S. District Judge Robert Hinkle, who determined the state law is an unconstitutional poll tax.
Lawmakers passed Senate Bill 7066 as enabling legislation after more than 71 percent of Florida voters in November 2018 approved Amendment 4, restoring voting rights for felons other than those convicted of murder and sexual assault.
SB 7066 required felons pay all fines, fees and restitution before being eligible to vote, prompting a federal lawsuit on behalf of 17 felons by the American Civil Liberties Union of Florida, the NAACP Legal Defense and Educational Fund and the Brennan Center for Justice.
The year-long legal battle over SB 7066 culminated in an eight-day trial in May in Hinkle’s Tallahassee courtroom.
In his decision, Hinkle called SB 7066 a “pay-to-vote system” that imposes “a tax by any other name” and required the state to ascertain how much a felon owes within 21 days of a status request or voting rights are automatically restored.
On Tuesday, felons’ attorneys cited Hinkle’s repeated frustration over the state’s failure to create a database to document how much in fines felons owe.
ACLU attorney Julie Ebenstein said only three of Florida’s 67 counties have a sentence-modification program and the $10 hourly community service rate makes it “illusory” they’d be able to pay legal obligations.
“Disenfranchisement is not just a single momentary penalty; it’s ongoing as individuals miss election-after-election,” she said.
ACLU attorney Nancy Gbana Abudu said the law was designed to punish the poor “genuinely unable to pay.”
Cooper disputed that contention, noting fines and monetary damages are imposed based on a person’s crime, not economic status.
A University of Florida study said 80 percent of felons owe some money, with 60 percent owing at least $1,000 and 19 percent more than $10,000.
The Florida Rights Restoration Coalition has raised more $4 million to help pay court costs, with donations from retired basketball star Michael Jordan, current NBA star LeBron James and comedian Kevin Hart. It is estimated Florida felons owe at least $3 billion.
As many as 85,000 Florida felons had registered before the 11th Circuit in June granted the state a stay of Hinkle’s October order.
