On Sunday, U.S. District Judge Robert Hinkle held that a Florida statute requiring felons to pay all fines and fees before casting a ballot amounted to an illegal poll tax and was also void for vagueness. The sweeping 125-page decision will likely be appealed to the 11th Circuit and eventually the Supreme Court dragging out a final ruling for months. Luckily, there’s no history of Florida voters wreaking havoc in a presidential election year, so this should all be fine.
In a 2018 ballot initiative, 64 percent of Florida voter passed Amendment 4 restoring the franchise to residents with felony convictions upon the completion of parole and probation. In this same election, with potentially one million Floridians disenfranchised due to prior felony convictions, Republicans Ron DeSantis and Rick Scott eked out wins of less than 40,000 votes.
Immediately the Republican legislature swung into action, enacting “enabling” legislation mandating the payment of all fees and fines before voting rights could be restored. With the near universal imposition of hundreds of dollars of costs on all criminal defendants, most of whom are unable to pay, this amounted to a de facto revocation of Amendment 4.
The Eleventh Circuit already enjoined Florida from disenfranchising voters who are genuinely unable to pay, but Judge Hinkle’s decision goes much further and seems deliberately tailored to withstand appeal.
In 2012, Justice Roberts classified the penalty for not purchasing health insurance as a “tax” in the case upholding the legality of Obamacare. Judge Hinkle explicitly relies on this logic to characterize mandatory court fees as “A tax by any other name” in violation of the Twenty-Fourth Amendment’s ban on poll taxes, differentiating court assessments from punitive fines or restitution. Particularly since those fees are set by statute, unrelated to the offense, and imposed on defendants who plead no-contest with no explicit judicial finding or admission of guilt.
If a state chose to fund its criminal-justice system by assessing a $10 fee against every resident of the state, nobody would doubt it was a tax. Florida has chosen to fund its criminal-justice system by assessing just such a fee, but to assess it not against all residents but only against those who are alleged to have committed a criminal offense and are not exonerated. As a measure designed to raise revenue to fund the government, this would be a tax even if exacted only from those adjudged guilty. The result is made more clear by the state’s exaction of the fee even from those not adjudged guilty.
Worse yet, Florida has no reliable system for felons to get an accurate accounting of fees owed. Here are two examples from the many named plaintiffs who could have been plucked from a ConLaw exam.
Mr. Mitchell was unaware he owed any amount until he registered to vote and received a notice from his county’s Clerk of Court. He now believes he owes $4,483 arising from convictions in Miami-Dade and Okeechobee Counties. The record does not show what amounts were included in his sentences. The MiamiDade Clerk of Court’s website includes a docket entry indicating $754 was assessed as costs. One cannot know, from this record, what amount the State asserts Mr. Mitchell must pay to vote. But Mr. Mitchell works at a nonprofit without salary; even if the amount was only $754, Mr. Mitchell would be unable to pay it.
Ms. Riddle was convicted of felonies between 1975 and 1988 in two different counties. She asked the Clerks of Court for copies of the records of the convictions, but she was told the Clerks were unable to find them. Ms. Riddle apparently owes roughly $1,800 in connection with later convictions, but the Clerk’s records do not match those maintained by the Florida Department of Law Enforcement. Ms. Riddle is unable to pay that amount. Ms. Riddle does not know, and despite diligent efforts has been unable to find out, how much the State says she must pay to vote.
I’ll take “Void For Vagueness” for $600, Alex!
In an amicus brief to the Eleventh Circuit urging that court to uphold the right of states to condition voting rights upon ability to pay court fees, Alabama, Arizona, Arkansas, Georgia, Kentucky, Louisiana, Nebraska, South Carolina, Texas, and Utah argued that the states “have a substantial interest in ensuring that they can continue to pursue the goal of re-enfranchisement alongside other important state interests like deterrence, retribution, and restitution.” In other words, if the court won’t allow them to limit the franchise to rich felons who are able to pay to get their votes back, then the they’ll be forced to bar all felons from voting.
Which may work at the Eleventh Circuit, which Trump just flipped by elevating two judges recently installed by Florida Governor Ron DeSantis on the state’s Supreme Court to the federal bench. But Judge Hinkle was unpersuaded by that logic, or Florida’s facially bad faith argument that the “enabling legislation” was a simple clarification, not an attempt to circumvent the will of the voters.
In 18 months since Amendment 4 was adopted, the State has done almost nothing to address the problem—nothing, that is, except to jettison the most logical method for determining whether the required amount has been paid and substituting a bizarre method that no prospective voter would anticipate and that doesn’t solve the problem. The flaws in Florida’s approach are especially egregious because a person who claims a right to vote and turns out to be wrong may face criminal prosecution.
And now we wait to see what novel clusterf*ck will be visited upon the electorate in 2020 by the courts and the Sunshine State. They’ll have to work hard to top 2000’s hanging chads/Brooks Brothers riot/butterfly ballot debacle. Dig deep, Florida man, you can do it!
Opinion On the Merits [Kevin Leon Jones v. Ron DeSantis, No. 4:19-cv-00300-RH-MJF (N. D. Fla., May 24, 2020)]
’A game-changer’: Five takeaways from Sunday’s ruling on felon voting [Tampa Bay Times]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.