Appeals judges hear arguments over felons voting

ATLANTA – As Floridians went to the polls in Tuesday’s 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 “legal financial obligations” to be eligible to vote is unconstitutional.

The law was aimed at carrying out a 2018 constitutional amendment that restored voting rights to felons “upon completion of all terms of sentence, including parole and probation.” Hinkle ruled that the state cannot deny voting rights to felons “who are genuinely unable to pay” court-ordered fees, fines, costs and restitution, as mandated in the law.

During Tuesday’s video hearing before the full appeals court, Charles Cooper, a lawyer who represents the DeSantis administration, urged the judges to reverse Hinkle’s ruling, which also found that court-ordered fees and costs are an unconstitutional “poll tax” because they are used to fund state government services.

Cooper reasserted the state’s 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’s sentence.

“The financial terms of fulfilling a sentence were imposed because he committed a felony,” Cooper told the nine appeals-court judges who heard Tuesday’s arguments. Three judges recused themselves from hearing the case.

Also, the law “opens a path for removing the felon’s punishment” 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’s arguments — Barbara Lagoa and Robert Luck, both with roots in South Florida — 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’s position as she peppered lawyers on both sides with questions.

“Is there any evidence … to show that the state was in any way, shape or form impeding a felon’s right to be able to seek a court modification of an original sentencing order?” 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 “insufficient.” Only three of Florida’s 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.

“It’s not a real option for most people. It’s illusory for most people,” Ebenstein said.

Lagoa also appeared to support the state’s 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 “all terms of sentence” were unconstitutional.

“Tell me where would you strike, what would you strike, in order to make this constitutional?” Lagoa pressed. “Are you asking us to rewrite a constitutional provision?”

Ebenstein said the court should follow Hinkle and “enjoin an unconstitutional application.”

“But if you enjoin an unconstitutional application, then it’s void, unless you sever something. You can’t have one or the other,” Lagoa persisted.

Judges Charles Wilson, who was appointed to the court by former President Bill Clinton, questioned Cooper on the issue.

“Is it the state’s position that we scrap the whole thing?” Wilson asked.

“The state does not believe that Amendment 4 could be rewritten with those conditions and caveats consistent with the law that governs severability,” 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 “Kafkaesque nightmare” of navigating a labyrinthine system of incomplete or contradictory court records, especially in cases that are decades old.

“The state has been staggeringly unable” to determine whether felons are eligible to vote, Ebenstein argued.

State and local elections officials “have been universally unable to make a single eligibility determination,” 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 “advisory opinion” if they are uncertain about their voting eligibility. The state agency also laid out a system known as the “firstdollar” 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 “processed” 35 requests for advisory opinions.

When asked which method the state used to process the applications, Cooper said: “It’s an amalgam of them.”

“I don’t know the respective numbers and which template they have attempted to follow,” he said.

Judge Adalberto Jordan, who was appointed to the court by former President Barack Obama, appeared skeptical of the state’s implementation of Amendment 4.

“Do 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?” he asked Paul Smith, another lawyer representing the plaintiffs.

The state law creates “two classes of people, those who can afford to pay … and those who cannot,” Smith said.

“If the state is going to say you have to pay a sum of money to vote and the state can’t tell you how much it is and you can’t figure it out, there is a due process problem and your poverty does not prevent you from arguing that due process problem,” 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’s 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.

“What 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?” Jordan asked Cooper. “What does that tell you about the rationality of Florida’s system?”

“It tells me that Florida did not get its act together as quickly as one would hope, to be sure. But I’m here to tell you that Florida has now gotten its act together,” the state’s lawyer said.