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Florida’s “Pay-to-Vote” System Struck Down

by David M. Reutter

A Florida federal district court declared portions of Florida’s felon voting system unconstitutional. It issued injunctive relief that orders a new process put in place for indigent persons who owe financial obligations as part of a criminal sentence.

In 2018, 64.55% of Florida voters approved Amendment 4, which restored the voting rights of some convicted felons “upon completion of all terms of sentence including parole or probation.” It specifically excluded persons “convicted of murder or felony sexual offenses.” [See PLN, October 2018, p. 32.]

The Florida Legislature responded by enacting a law that defined “upon completion of all terms of sentence including parole or probation” to mean all legal financial obligations (LFOs) “contained in the four corners of the sentencing document.”

That legislation was challenged in a class action lawsuit. The district court granted a preliminary injunction that prevented action against the named plaintiffs registering to vote or voting. The Eleventh Circuit Court of Appeals affirmed, holding that Florida cannot prevent an otherwise eligible felon from voting just because the felon failed to pay LFOs the felon is genuinely unable to pay. Then, the Florida Supreme Court held that “all terms of sentence including parole or probation” covers fines, fees, costs, and restitution.” [See PLN, June 2020, p. 62.]

The class action suit then proceeded to trial. In his 125-page ruling, U.S. District Judge Robert Hinkle wrote, “This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense.” In ruling on the merits, the court said, “Whatever might be said of a rationally constructed system, this one falls short in several respects.”

The court did not find racial discrimination, but it took issue with the purpose behind the LFOs. “Florida has chosen to fund its criminal justice system by assessing . . . fee[s] . . . from those adjudged guilty.” It concluded this amounted to a tax that violates the 24th Amendment.

To cure that violation, the court entered declaratory and injunctive relief. It declared Florida’s system violates the constitution where it is applied to persons who are unable to pay LFOs and requires LFO payment where the amounts owed are unknown and cannot be determined with diligence. It declared that when persons can pay LFOs there is no constitutional violation, but it becomes an unconstitutional tax when LFO payment is a condition of voting.

The State was ordered to allow persons to request an advisory opinion on voting eligibility. If it could not provide within 21 days of the request “a statement of the amount of any fine or restitution at must be paid to make the requesting person eligible to vote” or determine the person is ineligible to vote it could not take any action to prevent the person from registering to vote and from voting.

The State’s assertion “a person is able to pay will have no effect” where “(a) requesting person had an attorney appointed or was granted indigent status in the last proceeding that resulted in the felony conviction,” (b) a financial affidavit submitted in a felony proceeding established indigency under Florida law, or (c) the LFOs were converted to civil liens unless the Stare “has credible and reliable information the requesting person is currently able to pay the [LFOs] at issue.”

It further found the named plaintiffs were not ineligible to vote. It also found the form based on Section 97.052(2)(t), Florida Statutes (2019) violates the National Voter Registration Act. The court’s May 24, 2020, order declared that as the prevailing party the class is entitled to recover attorney fees. See: Jones v. DeSantis, USDC (N.D. Fla.), Case No. 4:19-cv-300, 2020 U.S Dist. LEXIS 90729.

Related legal case

Jones v. DeSantis