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Federal Judge Keeps Heat on Florida to Implement Amendment 4 Voter Restoration for Ex-Felons

On April 7, 2020, Florida’s Republican Gov. Ron DeSantis and its GOP-dominated legislature lost another round in their battle to limit a voter-approved amendment to the state constitution providing automatic restoration of voting rights to most convicted felons “upon completion of all terms of sentence including parole or probation.”

U.S. District Judge Robert Hinkle ruled that his earlier decision in October 2019 to block the state from making the payment of fines, fees and restitution owed to courts and victims a condition of re-enfranchisement covers all individuals in the state, not merely the 17 named plaintiffs who originally sued the governor. Hinkle said he would grant the suit class-action status to cover all of the state’s former felony prisoners contemplated by the amendment.

Almost 71 percent of state voters approved Amendment 4 in November 2018. But the Republican-dominated state legislature moved quickly to define the amendment’s prerequisite to re-enfranchisement – “completion of all terms of sentence” – to mean “any portion of a sentence that is contained in the four corners of the sentencing document,” including “full payment of LFOs (legal financial obligations) ordered by the sentencing court as part of the sentence.” [SeePLN, Oct. 2019, p. 58; Sept. 2018, p. 14.] DeSantis signed that “enabling law,” SB 7066, in June 2019.

Tampa Rep. James Grant, who sponsored SB 7066, said he didn’t “want to know the impact” that it might have before it was passed, adding later that he “intentionally stayed blind to the data of the affected classes.” County election supervisors were blindsided because the state never created a way to track LFO payments. As a result, there is still no simple way to prove they have been satisfied.

A private census of county elections clerks by the nonprofit Florida Rights Restoration Coalition (FRRC) estimated the aggregate total of LFOs at more than $1 billion – nearly $1,500 for each affected released felon. The nonprofit Sentencing Project estimates about 1.4 million released felons were enfranchised by passage of Amendment 4. But a study by University of Florida political science professor Daniel Smith found that over 80% of those had outstanding LFOs.

The Human Rights Defense Center, which publishes PLN, opposed the amendment because it created a separate class of released felons by excluding those convicted of murder or sexual offenses who had nonetheless paid their debt to society.

Records a ‘Mess’

SB 7066 spawned several lawsuits arguing that payment of LFOs amounted to a poll tax. In October 2019, Hinkle ruled in favor of 17 plaintiffs in a combined suit challenging the law, a decision that the U.S. 11thCircuit Court of Appeals in Atlanta upheld in November 2019.

Hinkle also issued a preliminary injunction that prohibited denying voter registration to anyone unable to pay LFOs despite an advisory opinion requested by DeSantis from the Florida Supreme Court. In the governor’s only legal victory so far in this fight, that advisory opinion on January 16, 2020 concluded that court fines, fees and restitution should be paid before voting rights would be restored.

Answering the narrow question DeSantis presented, the state’s Supreme Court justices concluded that all “terms of sentence” had “one natural reading — one that refers to all obligations, not just durational periods.”

The court rejected the argument that Amendment 4 does not expressly mention LFOs but does mention “parole or probation,” which are forms of release that have a durational term. Because those words came after the word “including,” the court said precedent holds that it is improper to apply the canon of expressio unius est exclusio alterius, meaning that “the mention of one thing implies the exclusion of another.”

The court found that several rules and statutes that include LFOs as part of the criminal sentence or sanction, including restitution orders, must be imposed. But the devil is in the details, and all parties agree that Amendment 4 is vague on those.

Amendment 4, which was backed by the ACLU, was advocated for by former Democratic Speaker of the House and prominent attorney Jon Mills, who argued to the Florida Supreme Court when it was considering placing Amendment 4 on the 2018 ballot that “all terms of sentence” included LFOs. Mills had been a core architect and co-sponsor of a 1998 amendment to the Florida Constitution that resulted in Florida charging high fines and fees to finance the courts.

“His connection with this process of fines and fees really does put what he said before the Supreme Court in a new light,” said Ashley Thomas, the Florida director of the Fines and Fees Justice Center. See: Advisory Opinion to the Governor, So.3d. (Fla. 2020).

But even after the state Supreme Court’s advisory opinion, Florida was still unable to tell Judge Hinkle exactly how a county elections clerk was going to be able to determine whether a released felon had, in fact, satisfied his or her outstanding LFOs.

“The state’s records of financial obligations are a mess,” Hinkle wrote in his decision.

With a presidential election looming in November 2020, he added, the state cannot afford to wait to see how he rules before it decides how to track LFOs.

“If the state is not going to fix it, I will,” Hinkle promised.

A full trial on the matter was held on April 27, 2020. As this issue of PLN goes to press, the court issued a ruling holding felons could not be barred from voting due to an inability to pay fines and fees. We will report that ruling in a future issue of PLN.