TALLAHASSEE --- Accusing voting-rights groups of “a grievous bait-and-switch,” lawyers for Gov. Ron DeSantis on Monday asked a federal appeals court to keep hundreds of thousands of felons from voting unless they pay court-ordered financial obligations associated with their convictions.
The DeSantis administration is asking the11th U.S. Circuit Court of Appeals to reverse a ruling by a Tallahassee federal judge in a legal fight that could have a significant impact on the outcome of the November presidential election in Florida, a battleground state that Democrats and Republicans view as crucial for a White House win.
Monday’s brief came as the administration and voting-rights groups prepare for Aug. 18 arguments at the Atlanta-based appeals court about a 2019 state law, approved by Republican legislators and signed by DeSantis, requiring felons to pay court-ordered “legal financial obligations” --- fees, fines, costs and restitution --- to be eligible to vote.
The law was aimed at carrying out a 2018 constitutional amendment that restored voting rights to felons “upon completion of all terms of sentence,” a key phrase that has been at the heart of the litigation. Organizations that challenged the law maintained that linking voting rights and finances amounts to an unconstitutional “poll tax.”
U.S. District Judge Robert Hinkle in May cemented an October preliminary injunction in which he decided the state cannot deny voting rights to felons who cannot afford to pay court-ordered financial obligations.
DeSantis appealed Hinkle’s ruling, and in an unusual move, the Atlanta-based appellate court agreed to what is known as an “en banc,” or full court, initial review of the case. Three-judge panels nearly always conduct initial reviews of appeals. The 11th Circuit also put Hinkle’s ruling on hold, preventing felons from voting in the August primary elections.
In Monday’s brief, DeSantis’ attorneys reasserted the defense of the Florida law they’ve made in previous court filings, arguing that it properly carries out the language of the constitutional amendment, known as Amendment 4, and the intent of its supporters.
Hinkle’s ruling “effectively vetoes the judgment of Florida voters that felons must repay their debt to society in full before returning to the electorate,” the state’s lawyers wrote in the 88-page brief.
They also argued states are allowed to permanently ban felons from voting “as part of the punishment for their crimes,” and Florida is not required to reenfranchise felons.
“It therefore follows that Florida had broad leeway in exercising its discretion whether and on what terms to reenfranchise felons,” the lawyers wrote.
Amendment 4 “provides an avenue for automatic restoration of felon voting rights in Florida, therefore opening a way for felons to regain the franchise that previously did not exist,” the brief said.
The American Civil Liberties Union and other supporters initiated the push for Amendment 4 in 2018 as an alternative to Florida’s broader restoration-of-rights process, a lengthy and cumbersome procedure that can be onerous and expensive to navigate.
Critics view Florida’s clemency process as an ugly reminder of Jim Crow laws designed to prevent Black people from voting.
Under the clemency system, felons must wait five years before applying to have their civil rights, including the right to vote, restored. Felons who have been convicted of certain violent crimes or sexual offenses must wait at least seven years before seeking a hearing before the state Board of Executive Clemency --- comprised of the governor and members of the Florida Cabinet --- to have their rights restored.
Former Gov. Rick Scott, who is now a U.S. senator, and former Attorney General Pam Bondi crafted the process shortly after taking office in 2011. It dramatically curtailed the number of convicted felons who regained the right to vote under an “automatic” procedure initiated by Scott’s predecessor, former Gov. Charlie Crist, who is now a congressman.
The application process can take years --- and big bucks --- to complete, and involves extensive documentation, such as certified copies of charges, judgments and other court documents.
During Scott’s eight-year tenure, he and the clemency board restored the voting rights of about 3,000 of the more than 30,000 convicted felons who applied, according to the Florida Commission on Offender Review. As of Feb. 1, the state had a backlog of more than 13,000 applications for restoration of civil rights, including the right to vote.
In contrast, more than 155,000 ex-felons had their right to vote automatically restored during the four years of Crist’s tenure, according to court documents.
Supporters of Amendment 4 claimed that it would have an impact on more than 1.4 million convicted felons.
Requiring felons to pay court-ordered financial obligations whittled that number in half, according to research performed for the plaintiffs by University of Florida political science professor Daniel Smith.
More than 770,000 Floridians who were convicted of felonies have outstanding financial obligations but are eligible to vote otherwise, Smith found.
Eighteen states automatically restore voting rights to felons who have served their incarceration time. Another 20 states restore voting rights to most felons who complete prison, parole and probation, according to the Brennan Center for Justice. Two states --- Maine and Vermont --- even allow prisoners to vote from behind bars.
Florida is one of fewer than a dozen states that impose what voting-rights advocates consider “permanent disenfranchisement” for at least some of its citizens, according to the Brennan Center.
“Florida still has far to go before it’s where we’d like it to be, but Amendment 4 absolutely was a monumental shift in Florida’s policy. It certainly looked like it was bringing Florida out of the category of being an outlier,” Sean Morales-Doyle, deputy director of the Brennan Center’s Voting Rights & Elections Program, told The News Service of Florida in a phone interview on Tuesday. The New York-based center is representing plaintiffs in the case.
But, he added, “the ongoing litigation and the continued refusal of the state to provide clarity to voters means that, in terms of sheer numbers of people who are left disenfranchised, Florida is still in some ways an outlier.”
Nearly 800,000 Floridians still owe some court-ordered debt, Morales-Doyle pointed out.
“Right now, the position that the state’s taking, those folks at the very least are completely confused about whether they’re eligible to vote and many, if not most, are ineligible to vote,” he said. “So you have a massive population of people that are still disenfranchised.”
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