Judge’s rul­ing could al­low ex-felons in state to vote

Orlando Sentinel - - Local & State - By Steven Le­mon­gello sle­mon­gello@ or­lan­dosen­tinel.com

More than 400,000 for­mer felons in Florida are now await­ing a rul­ing by a fed­eral judge in Tal­la­has­see that could pave the way for them to vote, even if they can’t af­ford to pay the fines and fees is­sued as part of their sen­tences.

Clos­ing ar­gu­ments on Wed­nes­day in the closely watched trial in Tal­la­has­see cen­tered on whether the 2019 law re­quir­ing fines, fees and resti­tu­tion be paid be­fore be­ing al­lowed to vote was racially mo­ti­vated and whether throw­ing out the law would invalidate the voter-ap­proved Amend­ment 4 it­self.

U.S. Dis­trict Judge Robert Hin­kle, who had pre­vi­ously is­sued an in­junc­tion al­low­ing the law­suit’s 17 plain­tiffs to reg­is­ter to vote if they could prove an “in­abil­ity to pay,” said last month he would ap­ply his new rul­ing to all ex-felons who can’t af­ford to pay. Hin­kle said he was plan­ning to is­sue a rul­ing “as soon as I can.”

The trial, which be­gan last week, stems from a law­suit by pro­gres­sive and vot­ing rights groups claim­ing the fines and fees re­quire­ment in SB 7066, the bill car­ry­ing out Amend­ment 4, is racially dis­crim­i­na­tory and the equiv­a­lent of a “poll tax” banned by the U.S.

Con­sti­tu­tion.

Amend­ment 4, which re­stores for­mer felons right to vote if they’ve com­pleted their sen­tence, was passed by Florida vot­ers in 2018. The 2019 law passed by the Leg­is­la­ture in­cluded all “fines, fees, and resti­tu­tion” as a part of a sen­tence, and a large seg­ment of the 1.4 mil­lion for­mer felons in Florida were un­able to reg­is­ter.

Leah Aden, an at­tor­ney for the NAACP Le­gal De­fense Fund, ar­gued that even if Repub­li­cans in the Leg­is­la­ture had par­ti­san mo­tives in im­ple­ment­ing re­stric­tions, their par­ti­san rea­son­ing was, in fact, race­based.

Repub­li­cans as­sumed that mak­ing it harder for exfelons to vote would largely im­pact African Amer­i­cans who tra­di­tion­ally vote for Democrats, Aden ar­gued.

“In­ten­tion­ally tar­get­ing a par­tic­u­lar race’s ac­cess to the fran­chise, be­cause its mem­bers vote for a par­tic­u­lar party in a pre­dictable man­ner, con­sti­tutes dis­crim­i­na­tory pur­pose,” Aden said. “This is so even ab­sent any ev­i­dence of race-based ha­tred.”

Hin­kle agreed, say­ing, “there plainly is a racial im­pact. … If felons are re­turned to the fran­chise, the per­cent­age of African Amer­i­cans in the elec­torate will go up. I think that’s what the record es­tab­lishes be­yond any doubt.”

The po­ten­tially 400,000 new vot­ers could play a ma­jor role in the Novem­ber elec­tion, in which Florida will be a key swing state in a matchup be­tween Pres­i­dent Don­ald Trump and for­mer Vice Pres­i­dent Joe Bi­den.

Julie Eben­stein, an at­tor­ney for the ACLU, said thou­sands of ex-felons also don’t know how much they owe and there­fore don’t know if they’re el­i­gi­ble to vote.

“If the ba­sis for pass­ing this law was to have made things easy to ad­min­is­ter, we would sub­mit … they couldn’t have made [it] more dif­fi­cult for qual­i­fied vot­ers to de­ter­mine whether they’re el­i­gi­ble to vote.”

Mo­ham­mad Jazil, the at­tor­ney for Sec­re­tary Lau­rel Lee, ar­gued that the 17 for­mer felons who sued had no stand­ing for a law­suit about felons who don’t know how much they owe.

“Each of the in­di­vid­ual plain­tiffs is reg­is­tered to vote and is cur­rently reg­is­tered to vote,” Jazil said “… We don’t have any in­di­vid­ual plain­tiffs who aren’t reg­is­tered. And, your honor, that’s the first point when it comes to the in­jury” they claim.

Jazil also ar­gued the 2019 law is ac­tu­ally more le­nient than the orig­i­nal amend­ment be­cause it cre­ates le­gal path­ways for felons to have fees and fines waived.

He warned that in­clud­ing an “abil­ity to pay” pro­vi­sion could mean the en­tire law is un­con­sti­tu­tional be­cause it in­fringed on the gov­er­nor’s clemency pow­ers, leav­ing Amend­ment 4 with­out any way of be­ing en­forced at all.

“The court would in my mind be placed in a po­si­tion where it would have to is­sue an in­junc­tion di­rect­ing the gov­er­nor, the Sec­re­tary of State and su­per­vi­sors of elec­tions from im­ple­ment­ing 7066 be­cause of the ex­plicit vi­o­la­tion of the sep­a­ra­tion of power pro­vi­sion in the Florida con­sti­tu­tion,” Jazil said. “We did not set loose the dogs of war, but we must go where they lead us.”

Dani Lang, an at­tor­ney for the Cam­paign Le­gal Cen­ter, called that ar­gu­ment “cyn­i­cal” and said Lee can’t claim an “abil­ity to pay” pro­vi­sion was un­con­sti­tu­tional at the same time she rec­om­mended adding just such a mech­a­nism.

CARLINE JEAN/SOUTH FLORIDA SUN SEN­TINEL

A fed­eral judge in Tal­la­has­see will de­cide whether more than 400,000 for­mer felons in Florida can vote, even if they can’t af­ford to pay the fines and fees is­sued as part of their sen­tences.

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