A U.S. appeals court opinion unanimously upheld a Florida-based federal judge’s preliminary injunction ruling that the state cannot restrict ex-felons from voting based on financial ability to pay fines and fees.
The decision still leaves it unclear who among Florida’s felons will be allowed to vote in this year’s presidential election, but sends a strong signal to the pending federal court case that such a ruling would be legally justified.
The opinion from a three-judge panel for the U.S. Court of Appeals for the 11th Circuit in Atlanta only applies to 17 plaintiffs in a federal lawsuit challenging a law requiring former felons to pay all fines and fees before being eligible to vote. But, it clearly states that it isn’t constitutional to deny a population of former felons the right to vote based on wealth.
“Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise,” the judges wrote.
Gov. Ron DeSantis’ office did not immediately respond to a request for comment, but a spokesperson tweeted in response to the opinion that they “disagree and plan to appeal en banc.” This would mean asking the entire circuit’s roster of 12 active judges to re-hear the case and overturn their own panel, a rarity.
Wednesday’s opinion is the latest in a long battle over felon voting rights in Florida, one that picked up momentum in 2018 when voters approved a constitutional amendment restoring rights of 1.4 million ex-felons who completed “all terms of sentence,” and whether that interpretation should include the payment of all fines and fees.
Last summer, Florida’s Republican-led Legislature and Republican governor passed and signed a law requiring all former felons to pay all outstanding court fees and fines before getting voting rights restored. That led to the lawsuit –– now set for trial in April before U.S. District Judge Robert L. Hinkle in Tallahassee.
The results of the case could affect voter turnout in 2020 for hundreds of thousands of former felons who cannot afford to pay fees. Many of them are minorities. As a swing state, the outcome of adding ex-felons to the voter rolls could affect who wins the presidential election in Florida, and ultimately who wins the White House.
Wednesday’s ruling was a reflection of tough questions posed to DeSantis’ legal team during oral arguments in Atlanta last month. The opinion provides an answer to the judges’ key question in court: Was it legal to allow a group of felons who can pay to vote, but exclude from the polls the group of those who can’t pay?
“The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier,” the judges wrote.
The opinion comes after DeSantis appealed Hinkle’s preliminary injunction — issued in October — restoring the voting rights for the 17 plaintiffs, finding it to be unconstitutional for the state to deny voting rights based on financial inability to pay fees.
“Florida’s longstanding practice of denying an otherwise-qualified citizen the right to vote on the ground that the citizen has been convicted of a felony is not, without more, unconstitutional,” Hinkle wrote in his injunction.
The Florida Supreme Court released a non-binding advisory opinion on Jan. 16 — at DeSantis’ request — interpreting the amendment’s original language that the completion of “all terms of sentence” was intended to include the payment of any outstanding fines and fees.
The federal 11th Circuit in its Wednesday ruling acknowledged that the Florida Supreme Court’s word is decisive as to what the amendment covers. But that did not resolve the federal constitutional question before the 11th Circuit, the three-judge panel wrote: “It is altogether unclear whether the people of Florida would have voted differently if they knew that the amendment they adopted could not be constitutionally applied to those felons who were genuinely unable to pay despite their good faith efforts to do so.”
The case currently only represents the 17 individuals, but in September lawyers proposed an option for the lawsuit to represent a broader population of former felons in Florida who can’t afford to pay outstanding fines or fees. The court has not yet ruled on the class action.
“The sanction of disenfranchisement cannot be described merely as a one-time revocation of the right to vote; rather, the punishment visits the felon at each and every election,” the judges wrote. “Felons who are unable to pay (and who have no reasoned prospect of being able to pay) will remain barred from voting, repeatedly and indefinitely, while for those who can pay, the punishment will immediately come to an end.
