Two judges should step aside from crucial Florida voting case
American courts have no armies to enforce their decisions. The rule of law rests wholly on the public’s faith that judges will rule fairly despite their own inevitable political and personal leanings. Perception is critical. That is why the code of conduct for federal judges obliges them to disqualify themselves whenever their impartiality “might reasonably be questioned.”
Nevertheless, the impartiality of two federal judges from Florida is in reasonable question in a case on appeal that will decide whether nearly a million Floridians will regain their voting rights now —or ever. The judges have refused appropriate requests to disqualify themselves.
The case is before the 11th U.S. Circuit Court of Appeals, where President Trump last year appointed Florida Supreme Court justices Barbara Lagoa and Robert Luck. They were confirmed and took their seats within a month after they had heard arguments in a closely related case at Tallahassee. In refusing to step aside from this case, they rationalized that it is a separate “proceeding” rather than the one they already heard.
That’s quibbling. Although it may satisfy the letter of the law, it violates the spirit. To non-lawyers, it will be a distinction without a difference.
The outcome last year was an advisory opinion to Gov. Ron DeSantis. It said what he and the Legislature’s Republican leaders wanted to hear about Amendment 4, the 2018 voter initiative restoring voting rights to most ex-felons upon completion of “all terms of their sentence, including parole and probation.” The Florida court said that includes not only fines and restitution ordered by judges, but also automatic court costs and fees.
Florida disenfranchises felons for life. Before Amendment 4, their only appeal was restoration of rights on an individual basis by the governor and Cabinet, but that has become as relatively rare as Halley’s Comet.
The issue now before Lagoa and Luck is the state’s appeal of a May 24 decision by U.S. District Judge Robert F. Hinkle, at Tallahassee, that the implementing law is unconstitutional in part because “otherwise-eligible citizens will be allowed to vote only if they pay an amount of money.” Most of what people owe, he said, consists of “charges the state imposed to fund government operations — taxes in substance though not in name.” Moreover, the state couldn’t even tell people what they owed.
He ruled that Florida could extract fines and restitution — but not other costs — only from those ex-felons who are able to pay, and ordered it to set up a system to enable all of them to vote.
It is disgraceful for DeSantis and his allies to be appealing that, but it fits into their party’s current practice of suppressing the votes of people they fear will vote for Democrats. For the 11th Circuit to overturn Hinkle’s reasonable decision would serve that partisan purpose and damage the court’s reputation indelibly.
Former President Barack Obama alluded to Florida’s harshness in his eulogy for Rep. John Lewis, the voting rights pioneer. He urged automatic voter registration of all Americans, “including former inmates who’ve earned their second chance.”
The arguments before the Florida Supreme Court concentrated on semantics and on whether Florida voters, who favored Amendment 4 nearly two to one, understood that “terms” meant more than time spent in jail or on probation. The court’s conclusion appeared to validate the controversial Florida law implementing the amendment. That’s the law in question at the 11th Circuit.
Lagoa and Luck, who had been appointed to the Supreme Court, left before it issued the advisory opinion. Of note, though, is that they had asked most of the questions — at least 25 between them — during oral argument. Luck did not signal how he might vote, but Lagoa was plainly unsympathetic to the civil rights lawyers who were arguing for a strict interpretation limited to time served.
She even suggested that the entire amendment might have to be invalidated, which happens to be one of the state’s points on appeal to her present court.
That would be an unconscionable disaster, overruling the votes of 5.1 million Floridians and condemning nearly a million others to a lifetime second-class citizenship.
The Florida Supreme Court holds its decision conferences immediately after oral argument, so it is highly likely that Lagoa and Luck contributed to the consensus even though they weren’t able to sign the opinion.
It is also likely that both contributed to the 11th Circuit’s unusual decision to stay Hinkle’s decision pending the outcome of the appeal. That procedural question normally would have been left to the same three-judge panel that had already upheld a preliminary Hinkle decision allowing a handful of named plaintiffs to vote this year.
The 12- judge 11th Circuit, once known as a bastion of civil rights, now has a majority of judges appointed by Republican presidents — three of them by Trump, who is unsympathetic to voting rights.
Oral arguments in Florida’s appeal are set for Aug. 18, the same day as the state’s primary. Simply by delaying its decision, the court could also keep nearly a million Floridians from voting in the November general election, which will be one of the most consequential in our history.
Appearances matter. This situation doesn’t simply look bad. It smells.
To win confirmation of their appointments, Lagoa and Luck assured the Senate Judiciary Committee they would recuse themselves from any case in which they had played a role. All 10 of the committee’s Democrats called for their recusal in the voting case, as did some of the plaintiffs.
In their response, Lagoa and Luck rationalized that the judicial code and related cases “are clear” that recusal is not required because of a “separate, even if related, proceeding or case.” They said they have disqualified themselves in appeals of six Florida criminal cases that they had helped to decide back in Tallahassee.
Lagoa and Luck might still vote for the right to vote, as Hinkle intended. We would be pleased for our skepticism to prove unfounded.
They should take to heart what attorneys for some of the plaintiffs appropriately warned in their unsuccessful motion:
“This case, determining whether approximately 750,000 individuals have a right to vote, will be subject to close public scrutiny whatever the result.”