State asks for hold on Amendment 4 ruling

By Dara Kam

News Service of Florida

Gov. Ron DeSantis asked an appeals court last Friday to continue preventing felons from voting while the state appeals a federal judge’s finding that a law requiring indigent felons to pay “legal financial obligations” to be eligible to vote is unconstitutional.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Wednesday upheld U.S. District Judge Robert Hinkle’s October ruling that the state cannot deny the right to vote to felons who are “genuinely unable to pay” court-ordered financial obligations, such as fees, fines and restitution.

Desmond Mead (center) led the fight for Amendment 4 approval before the 2018 elections.
Photo by St. Clair Murraine

DeSantis wants the full appeals court to review the case in what is known as an “en banc” hearing. In a brief Friday, his lawyers wrote that “a majority of the active judges on this court will likely agree to hear the case en banc” and overturn last Wednesday’s decision.

The state law, passed by the Republican-controlled Legislature last year, was aimed at carrying out a constitutional amendment, known as Amendment 4, that restored voting rights to felons who have completed terms of their sentences. Voting-rights groups challenged the law, arguing that hinging voting rights on felons’ finances amounts to a modern-day “poll tax.”

The Florida law “unconstitutionally punishes a class of felons based only on their wealth,” the three-judge panel wrote last Wednesday.

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,” judges Lanier Anderson III, Stanley Marcus and Barbara Rothstein decided.

Hinkle issued a preliminary injunction that 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.

Hinkle agreed to 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 extension request before Wednesday’s decision.

In arguing last Friday to keep Hinkle’s decision on hold, the state’s lawyers said Wednesday’s ruling created a split with another appellate circuit, making it likely the full 11th U.S. Circuit Court of Appeals will agree to review the case.

“And this is not a circuit split on a mundane or inconsequential matter. Instead, it goes to the very composition of the electorate of the state of Florida, an issue of profound importance,” DeSantis’ lawyers wrote.

Much of the state’s 17-page motion attacked the manner in which the three-judge panel reached its ruling.

The state’s lawyers contend that the judges applied the wrong type of analysis, known as “heightened scrutiny,” to arrive at the decision and should have relied on a “rational-basis review” used by other courts when weighing similar matters.

“It is likely that a majority of the active members of this court will want to rehear this case en banc rather than allowing the panel decision to establish such a dramatic departure from prior precedent on such an important issue,” they added.

The state also argued that, because felons have already forfeited their right to vote, “this case does not implicate that fundamental right.”

The precedent-setting nature of Wednesday’s ruling is even broader because of the analysis the panel relied on, DeSantis’ lawyers wrote.

“It is entirely rational for the people of Florida to insist on all felons repaying their debt to society in full before rejoining the electorate, and that is true even if the analysis focuses solely on those unable to pay and even if it were true that the majority of felons were not able to pay,” they argued.

The constitutional amendment, approved by more than 65 percent of Florida voters in 2018, 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.”

Florida’s “interest in retribution is not satisfied until the terms of a felon’s sentences are completed in full,” the state’s lawyers wrote in Friday’s brief.

“This is true regardless of whether a felon can afford any financial terms of his or her sentence,” they added. “By holding that a state may not rationally insist on a full measure of justice before determining that a felon’s breach with society has been healed and therefore that the felon may rejoin the voting community, the court effectively attacks the validity of the underlying punishment itself.”

DeSantis, a Harvard Law School graduate, said he believes the full court will take up the case.

“And because this is the first time any court has held something like this, that you could not condition re-enfranchisement of a felon on, say, payment of restitution for the victim, that would be something that, if the 11th Circuit concurred with the panel, clearly would be accepted by the U.S. Supreme Court,” he told reporters last Thursday. “So, we’ll see how it goes … But I’m not sure that the folks that are driving the litigation have really thought this through. It may not work the way they think it will.”