TALLAHASSEE --- As Floridians went to the polls in Tuesday鈥檚 primary elections, an Atlanta-based appeals court held arguments in a showdown over voting rights that could determine whether hundreds of thousands of convicted felons will be able to cast ballots in the November presidential election.
Gov. Ron DeSantis is asking the 11th U.S. Circuit Court of Appeals to reverse a ruling by U.S. District Judge Robert Hinkle, who found that a 2019 state law requiring felons to pay court-ordered 鈥渓egal financial obligations鈥� to be eligible to vote is unconstitutional.
The law was aimed at carrying out a 2018 constitutional amendment that restored voting rights to felons 鈥渦pon completion of all terms of sentence, including parole and probation.鈥� Hinkle ruled that the state cannot deny voting rights to felons 鈥渨ho are genuinely unable to pay鈥� court-ordered fees, fines, costs and restitution, as mandated in the law.
During Tuesday鈥檚 video hearing before the full appeals court, Charles Cooper, a lawyer who represents the DeSantis administration, urged the judges to reverse Hinkle鈥檚 ruling, which also found that court-ordered fees and costs are an unconstitutional 鈥減oll tax鈥� because they are used to fund state government services.
Cooper reasserted the state鈥檚 defense that the Florida law properly carries out the constitutional amendment, known as Amendment 4, and the intent of its supporters. Cooper argued that, like time behind bars, court fees and costs are part of a felon鈥檚 sentence.
鈥淭he financial terms of fulfilling a sentence were imposed because he committed a felony,鈥� Cooper told the nine appeals-court judges who heard Tuesday鈥檚 arguments. Three judges recused themselves from hearing the case.
Also, the law 鈥渙pens a path for removing the felon鈥檚 punishment鈥� by allowing a court to modify a sentence and waive the financial obligations or to convert them into community service, Cooper stressed.
Two of the judges who heard Tuesday鈥檚 arguments --- Barbara Lagoa and Robert Luck --- served on the Florida Supreme Court last year, after being appointed by DeSantis. Luck and Lagoa left the state court after President Donald Trump tapped them to serve on the federal appeals court.
While Luck remained mostly mum during the two-hour hearing, Lagoa propped up the state鈥檚 position as she peppered lawyers on both sides with questions.
鈥淚s there any evidence 鈥� to show that the state was in any way, shape or form impeding a felon鈥檚 right to be able to seek a court modification of an original sentencing order?鈥� she asked Cooper, who said no.
But Julie Ebenstein, an American Civil Liberties Union lawyer who represents plaintiffs in the case, noted that Hinkle called the remedies in the state law 鈥渋nsufficient.鈥� Only three of Florida鈥檚 67 counties have a sentence-modification program in place and the $10-per-hour rate for community service means that many felons would never be able to work off their debt, she added.
鈥淚t鈥檚 not a real option for most people. It鈥檚 illusory for most people,鈥� Ebenstein said.
Lagoa also appeared to support the state鈥檚 contention that the court should strike down all of Amendment 4 if a majority of the judges decided that the legal financial obligations included in the phrase 鈥渁ll terms of sentence鈥� were unconstitutional.
鈥淭ell me where would you strike, what would you strike, in order to make this constitutional?鈥� Lagoa pressed. 鈥淎re you asking us to rewrite a constitutional provision?鈥�
Ebenstein said the court should follow Hinkle and 鈥渆njoin an unconstitutional application.鈥�
鈥淏ut if you enjoin an unconstitutional application, then it鈥檚 void, unless you sever something. You can鈥檛 have one or the other,鈥� Lagoa persisted.
Judges Charles Wilson, who was appointed to the court by former President Bill Clinton, questioned Cooper on the issue.
鈥淚s it the state鈥檚 position that we scrap the whole thing?鈥� Wilson asked.
鈥淭he state does not believe that Amendment 4 could be rewritten with those conditions and caveats consistent with the law that governs severability,鈥� Cooper replied.
While critics of the law have likened it to imposing a poll tax, many felons also have a hard time ascertaining whether they have outstanding financial obligations. Some attorneys have described a 鈥淜afkaesque nightmare鈥� of navigating a labyrinthine system of incomplete or contradictory court records, especially in cases that are decades old.
鈥淭he state has been staggeringly unable鈥� to determine whether felons are eligible to vote, Ebenstein argued.
State and local elections officials 鈥渉ave been universally unable to make a single eligibility determination,鈥� she added.
During a trial this year, state elections officials said they had flagged 85,000 voter-registration applicants who possibly owed financial obligations and were ineligible to vote under the law.
The state Division of Elections posted guidance on its website last week saying that felons could request an 鈥渁dvisory opinion鈥� if they are uncertain about their voting eligibility. The state agency also laid out a system known as the 鈥渇irst-dollar鈥� process in which all payments made by a felon --- including interest and fees paid to collection agencies --- would count toward the amount assessed at the time of sentencing.
Cooper was unable to say Tuesday how many of the 85,000 flagged applications had been vetted, but said the state has 鈥減rocessed鈥� 35 requests for advisory opinions.
When asked which method the state used to process the applications, Cooper said: 鈥淚t鈥檚 an amalgam of them.鈥�
鈥淚 don鈥檛 know the respective numbers and which template they have attempted to follow,鈥� he said.
Judge Adalberto Jordan, who was appointed to the court by former President Barack Obama, appeared skeptical of the state鈥檚 implementation of Amendment 4.
鈥淒o you know of any cases anywhere in the country that allow a state to impose a condition on the exercise of a benefit and then not tell people how to satisfy that condition?鈥� he asked Paul Smith, another lawyer representing the plaintiffs.
The state law creates 鈥渢wo classes of people, those who can afford to pay 鈥� and those who cannot,鈥� Smith said.
鈥淚f the state is going to say you have to pay a sum of money to vote and the state can鈥檛 tell you how much it is and you can鈥檛 figure it out, there is a due process problem and your poverty does not prevent you from arguing that due process problem,鈥� he added.
Jordan also noted that the state was unable to process voter-registration applications of 17 original plaintiffs in the case, which was later expanded to include all Florida felons who are eligible under the amendment. Under Hinkle鈥檚 May ruling, about 750,000 felons with outstanding financial obligations would have been able to register to vote without taking any further action. That ruling is on hold during the appeal.
鈥淲hat does it say that Florida was not even able to process the applications of the 17 felons in this case during the entire time that the trial was pending?鈥� Jordan asked Cooper. 鈥淲hat does that tell you about the rationality of Florida鈥檚 system?鈥�
鈥淚t tells me that Florida did not get its act together as quickly as one would hope, to be sure. But I鈥檓 here to tell you that Florida has now gotten its act together,鈥� the state鈥檚 lawyer said.