What’s the next step after latest Amendment 4 ruling?
On Friday afternoon, Judge
Robert Hinkle, a federal judge for the Northern District of Florida, issued a landmark decision in the ongoing legal saga about the implementation of Amendment 4 and the voting rights of people with convictions who are saddled with legal criminal debt they cannot afford to pay (“Judge strikes down ex-felon voting law,” Oct. 19). Judge Hinkle ruled that “an otherwise-qualified felon who establishes genuine inability to pay … be prevented from casting a ballot and having it counted.”
The vindication of this crucial constitutional principle — that wealth cannot be a factor in voting — will have an enormous impact.
Yet, Judge Hinkle’s injunction only specifically orders that the 17 individual plaintiffs — three of whom are my clients in the case — must be permitted to vote. Why? And what happens next? These are the questions that Florida voters are left wondering.
Here’s what we know. The order only applied specifically to the individual plaintiffs because they are the only people who have affirmatively demonstrated to the court (either in live testimony or signed affirmations) that they are unable to pay their outstanding fines and fees. And, at least for now, the district court held that only people who are unable to pay their legal financial obligations must be excused from this requirement for voting.
What about the up to hundreds of thousands of Floridians who, like these 17 individuals, are otherwise eligible to vote under SB 7066 and Amendment 4 but have outstanding legal debt they cannot pay? In the first instance, the judge left it to the state to create a process for them to prove their inability to pay, register and vote.
The secretary of state and governor have signaled that they intend to comply with the court’s order. In order to do so, they must, per the court’s order: “put in place an appropriate procedure through which an individual plaintiff may register and vote if otherwise qualified and genuinely unable to pay outstanding financial obligations.” The state has options in how it sets up this process, but the court laid out some ground rules:
An eligible applicant that registers to vote by the deadline must be able to vote in the next election. The court made clear that an “ability to pay” process that leaves eligible applicants waiting as elections pass them by is constitutionally insufficient. Thus, any process the state puts in place must ensure that genuine inability to pay can be “promptly addressed.”
Unlike the clemency process the governor has in place now, a person who is otherwise eligible under Amendment 4 but cannot afford to pay her legal debt
have her voting rights restored.
The court recognized that the community service option in SB 7066 is “often wholly illusory,” community service is credited at a low hourly rate, and the community service requirement would require voters to miss election after election as they attempt to work off their legal debt.
This problem arises because all voter registration forms require applicants to affirm their voter eligibility, which voters with outstanding fees cannot do until they have demonstrated inability to pay. As a practical matter, this means that the secretary will likely need to update the voter registration form, to, as the court suggested, “provide a method by which a felon can claim inability to pay on the application form,” or at minimum, clarify publicly that those who are otherwise eligible and believe they are unable to pay their legal debt can lawfully affirm their eligibility on the voter registration form. For the same reasons, the state should also provide a method by which those who are unsure if they have legal debt or if their legal debt is disqualifying are permitted to register to seek a determination of their eligibility.
The secretary of state has indicated that she is working on guidance for voters. If the state fails to follow the court’s instructions, Judge Hinkle made it clear that we could come back to court to ensure compliance with the order. Otherwise, the remaining issues in the case will be addressed at trial in April 2020.
In the meantime, the secretary must act quickly to protect the likely hundreds of thousands of Floridians impacted by this order.