BY Dara Kam
TALLAHASSEE — Delivering a harsh rebuke to Gov. Ron DeSantis, an appeals court on Wednesday upheld a federal judge’s decision that the state cannot bar voting by felons who can’t afford to pay court-ordered fees and fines.
A requirement that felons pay “legal financial obligations,” such as fees, fines and restitution, to be eligible to vote was part of a state law passed by the Republican-dominated Legislature last year. The law was aimed at carrying out a 2018 constitutional amendment that restored voting rights to felons who have completed their sentences.
U.S. District Judge Robert Hinkle ruled in October that it is unconstitutional to deny the right to vote to felons who are “genuinely unable” to pay financial obligations. In a preliminary injunction, Hinkle said state officials need to come up with an administrative process in which felons could try to prove they are unable to pay financial obligations and should be able to vote. The state appealed the ruling.
Wednesday’s unanimous decision by a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld Hinkle’s ruling.
“The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement — as the voters of Florida plainly did — it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny,” judges Lanier Anderson III, Stanley Marcus and Barbara Rothstein decided.
Requiring all felons to pay financial obligations violates equal protection rights guaranteed under the 14th Amendment because it “punishes those who cannot pay more harshly than those who can,” the panel wrote.
The state law “unconstitutionally punishes a class of felons based only on their wealth,” the Atlanta-based appeals court said
DeSantis spokeswoman Helen Ferré said in an email the governor does not agree with the ruling and intends to seek a review by the full appeals court, known as an “en banc” review.
But voting- and civil-rights advocates who challenged the state law hailed Wednesday’s decision.
“The court unanimously ruled that a person’s right to vote is not contingent upon their ability to pay,” Julie Ebenstein, an attorney with the American Civil Liberties Union’s Voting Rights Project, said in a prepared statement. “This law is a modern-day poll tax. This ruling recognizes the gravity of elected officials trying to circumvent Amendment 4 to create voting roadblocks based on wealth.”
Desmond Meade — a felon who garnered international acclaim for his advocacy for the constitutional amendment — warned that the appeals-court ruling and Hinkle’s preliminary injunction applied only to the 17 plaintiffs in the case.
“There’s many more steps in this journey. There are many more levels that have to be reached before we can actually claim some type of victory,” Meade, executive director of the Florida Rights Restoration Coalition, said. “We are cautiously optimistic … because we don’t want to create an environment to where people are thinking that this thing applies to them and that it’s all smooth sailing from now, for them to only get disappointed again.”
Backers of the constitutional amendment contend that last year’s law could prevent hundreds of thousands of felons from registering to vote.
Before and after the passage of the amendment, felons could ask the state Board of Executive Clemency to restore their civil rights, including the right to vote. But as of Feb. 1, more than 23,000 cases were pending decisions by the board, including 10,710 cases seeking restoration of rights, according to the state Commission on Offender Review.
The constitutional amendment restored voting rights to felons “who have completed all terms of their sentence, including parole or probation,” excluding people “convicted of murder or a felony sexual offense.” Lawmakers during the 2019 legislative session then approved the requirement to pay “legal financial obligations.”
Hinkle’s preliminary injunction prohibited the state from taking any action to prevent the 17 plaintiffs in the case from registering to vote. But the judge agreed to a state request to put on hold part of the injunction that would allow felons to vote if they can show they are unable to pay fines or fees.
inkle, who has scheduled two-week hearing in April in the case, agreed to place a stay on that part of his decision until the Atlanta-based appeals court ruled or until Feb. 11, depending on which came first. The state asked the appeals court to extend Hinkle’s stay, but the court had not ruled on that request prior to Wednesday’s decision.
In the 78-page decision, the appellate judges said it is “rational” for the state to withhold benefits for felons who have the ability to pay fines and restitution.
“However, as for these 17 plaintiffs, who are indigent and genuinely unable to pay despite good faith efforts, collection is obviously futile and further punishment makes collection no more likely,” they added. “The state cannot draw blood from a stone.”
The judges rejected a state argument that requiring payment of financial obligations provides an incentive for felons to pay.
The state’s position, they wrote, “relies on the notion that the destitute would only, with the prospect of being able to vote, begin to scratch and claw for every penny, ignoring the far more powerful incentives that already exist for them — like putting food on the table, a roof over their heads, and clothes on their backs.”
The appellate judges relied in part on previous U.S. Supreme Court rulings, including what is known as the “Griffin-Bearden” line of cases that established the state may not treat criminal defendants more harshly on account of their poverty.
The Supreme Court has also determined that states may not extend punishment on account of inability to pay fines or fees, the judges wrote, pointing out that Florida’s “disenfranchisement” is a punishment that “visits the felon at every election.”
“The felon with money in the bank will be re-enfranchised. But the felon who can’t will continue to be barred. Merely because the state could strip the rights of both felons does not mean it can continue punishment for some and not others,” they wrote.
Defending the statute, the state’s attorneys argued that it gives felons avenues to regain their voting rights. Under the law, victims can agree to waive restitution and other costs; courts can convert the fees and fines into community service hours; and felons can seek restoration of rights by the Board of Executive Clemency.
But the judges wrote that all three options “suffer from a common and basic infirmity” by being “entirely discretionary in nature.”
In urging the court to keep Hinkle’s ruling on hold, the state argued his decision would create difficulties and be expensive for state and county elections officials. The state also argued that the injunction “could change the outcome of the upcoming elections.” And the state’s lawyers expressed concern about the integrity of the electoral process if Hinkle’s ruling took effect.
“We think these interests, while significant, are unavailing as compared to plaintiffs’ interest in their opportunity to exercise the core democratic right of voting,” the judges wrote.
The injunction only applies to the 17 plaintiffs, they pointed out.
“As close as Florida elections may be, the votes of these 17 are vanishingly unlikely to be outcome dispositive,” they wrote.
The appeals court left it up to the state to decide how to comply with Hinkle’s order, noting that officials already make decisions about criminal defendants’ finances when determining whether they qualify for representation by public defenders.
“Moreover, and perhaps most important, at the end of the day, it is Florida’s voters who have chosen to automatically re-enfranchise the state’s felons, and that decision has necessarily created an administrative burden on the state,” the judges wrote. “In sum, we think that the harms the state may suffer as a result of the preliminary injunction are demonstrably outweighed by those imposed on the plaintiffs.”