A federal judge delivered an ultimatum Thursday to attorneys representing Gov. Ron DeSantis and his administration in a lawsuit challenging a 2019 law that implemented a constitutional amendment restoring voting rights to felons who have completed their sentences.
U.S. District Judge Robert Hinkle warned the state’s attorneys to come up with a process to determine whether felons have paid “legal financial obligations” as required by the law and whether those felons have the ability to pay the court-ordered fees and fines. He said that work needs to be done before an April 27 trial in the case — or else.
“If the state is not going to fix it, I will,” Hinkle snapped during a telephone hearing Thursday afternoon.
Hinkle issued a preliminary injunction in October and ruled that it is unconstitutional to deny the right to vote to felons who are “genuinely unable” to pay financial obligations. A panel of the 11th U.S. Circuit Court of Appeals upheld Hinkle’s ruling, but DeSantis has requested what is known as an “en banc,” or full court, review.
In the preliminary injunction, Hinkle told the state to come up with an administrative process in which felons could try to prove that they are unable to pay financial obligations and should be able to vote.
Months later, state elections officials have not developed such a system, Mohammad Jazil, a lawyer representing Secretary of State Laurel Lee, told Hinkle during Thursday’s hearing in the challenge filed by voting-rights and civil-rights groups.
Under a process that has been in effect for years, the state Division of Elections verifies that Floridians who register to vote are eligible to cast ballots by checking a variety of court databases. Voters who are not deemed eligible are flagged, and the information is sent to county supervisors of elections, who make the final determination about eligibility and have the authority to remove people from the voting rolls.
State Division of Elections Director Maria Matthews said in a Jan. 27 deposition that her office is “not sending down” to local supervisors any names or records of felons related to payment of legal financial obligations.
“If the state is still working on it, but not sending files down, then is it appropriate for the plaintiffs to say that there is no process? We believe the answer to that is, no. The state is working diligently every day. The state will have a process. The state has contingencies planned for if the courts go one way, the courts go another way. The state currently believes it would be irresponsible to lay out a process only to have it be changed by a court order a week, a month, two months from now, with the November election coming up,” Jazil told Hinkle during Thursday’s hearing.
But Hinkle, who for months has chided the state for failing to come up with a plan, interrupted Jazil.
“If you don’t have a position in place by the time of trial, and I decide that it is a constitutional right — and if you read the 11th Circuit decision you probably don’t want to bet against that — the answer’s not going to be, ‘Oh, start working on this.’ If the state is not going to fix it, I will,” the federal judge admonished.
Florida voters in 2018 passed the constitutional amendment designed to restore the voting rights of felons who have served their sentences. But the Republican-controlled Legislature in 2019 passed a controversial law to carry out the amendment, including requiring felons to pay legal financial obligations to vote.
The state lacks a uniform or consistent method of applying the 2019 law, with some records incomplete and others having discrepancies, according to court documents. Hinkle called the process “an administrative nightmare” during an October hearing.
Hinkle told Jazil on Thursday that “if the state wants to fix it, the state needs to get going.”
“I’ll be asking again at trial, where are you. And if the answer is, ‘we’re just waiting’ … You might want to change tack,” he added.
The financial obligations are at the heart of the legal challenge filed last year by groups including the American Civil Liberties Union and the Southern Poverty Law Center. The groups argued that the linkage between finances and voting amounted to an unconstitutional “poll tax.”
Appeals court concurs
A three-judge panel of the Atlanta-based federal appeals court in February upheld Hinkle’s decision that the state cannot bar voting by felons who can’t afford to pay court-ordered fees and fines.
“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.
The panel early this month refused to put its Feb. 19 decision on hold while the 11th Circuit considers DeSantis’ request for a full-court hearing.
Hinkle’s October injunction applied only to the 17 plaintiffs in the case, but the judge said Thursday he intended to grant class certification in the lawsuit. In addition, any declaratory judgment ordered by Hinkle would apply more broadly.
The judge also denied the state’s motion for summary judgment in the lawsuit, allowing the April 27 trial to proceed but with a hitch.
The lawyers in the case said they are trying to choose a video conferencing platform to carry out the trial remotely, due to concerns about the novel coronavirus.
To prevent the spread of COVID-19, the respiratory disease caused by the virus, health officials have discouraged gatherings of more than 10 people. Further complicating matters, many of the attorneys representing the numerous plaintiffs in the case live in New York. DeSantis has ordered people flying from New York to Florida to self-quarantine for two weeks, Hinkle noted.
“That makes it real hard for New York lawyers to come down here and try a case,” he said.