Case Undercuts Fee-Based Hurdles To Restored Voting Rights

By RJ Vogt | October 28, 2019, 7:26 AM EDT

A government can’t block people from voting just because they are too poor to pay a fine.

That was the crucial takeaway from a major court ruling earlier this month on whether people convicted of felonies in Florida should have their right to vote restored, in accordance with a constitutional amendment passed by referendum last November.

Known as Amendment 4, the change would re-enfranchise 1.4 million formerly convicted Floridians. But it was predicated “upon completion of all terms of sentence,” and state lawmakers subsequently passed a bill that included payment of punitive fines, like restitution charges, as well as fees, like a $50 public defender application charge, as part of the “terms.”

In response, indigent people who were formerly incarcerated sued the state, arguing the law violated their constitutional rights. On Oct. 18, U.S. District Judge Robert Hinkle of the Northern District of Florida issued an interim ruling that protects 17 plaintiffs from being denied the vote due to fines and fees they cannot afford to pay.

“An otherwise-qualified felon who establishes genuine inability to pay ... cannot be prevented from casting a ballot and having it counted,” Judge Hinkle ruled.

According to Danielle Lang, co-director of voting rights at the Campaign Legal Center and counsel to the plaintiffs in the Florida suit, Judge Hinkle’s ruling was the first to ever directly address whether states could link voting rights restoration to the payment of both punitive and operational fines and fees.

“It’s a very important signal, as states continue to liberalize their rights restoration laws, to keep in mind that even as they’re moving forward, they need to do it in a way that’s going to be fair to the poor and rich alike,” she said.

The Florida ruling comes amid a wave of voting rights restoration efforts across the country. Colorado Gov. Jared Polis in late May signed a law restoring the right to vote to people on parole, and Nevada Gov. Steve Sisolak signed similar legislation the next day that restored voting rights to all those released from prison.

In Kentucky, the state’s Democratic attorney general, Andy Beshear, is running for governor in next week’s elections on a platform that includes automatically restoring the vote for all residents who completed their sentences via executive order. More than 300,000 people in the state are barred from voting for life because of a felony conviction, according to research by The Sentencing Project — nearly 7% of the state’s entire population.

But Judge Hinkle’s ruling wasn’t all good for voting rights advocates and the estimated 6 million-plus Americans who are prohibited from voting due to felony offenses. The preliminary injunction also held that the state can require full payment as long as it offers some kind of ability to pay determination first.

That option will hinge on upcoming arguments at the Florida Supreme Court on Nov. 6th, where the state will defend its position that Amendment 4’s reference to “terms of sentence” included payment of outstanding court costs. If Florida wins, the legislation requiring payment can stand — as long as indigent people with felony convictions can be excused.

A spokesperson for Gov. Ron DeSantis said in a statement that the ruling “affirms the governor’s consistent position that convicted felons should be held responsible for paying applicable restitution, fees and fines while also recognizing the need to provide an avenue for individuals unable to pay back their debts as a result of true financial hardship.”

Lang said that avenue should be based on self attestation, similar to the way most voter registration forms allow people to self-declare their age, citizenship and criminal conviction history. She pointed out that anything more burdensome for potential voters would also be more costly for election and court administrators trying to track down often decades-old records.

Ultimately, some advocates hope that all the talk of voting rights restoration will lead to the elimination of disenfranchisement laws altogether, as U.S. Sen. Bernie Sanders has proposed.

The presidential hopeful’s home state, Vermont, and neighboring Maine are the only two states without disenfranchisement laws on the books. Such laws were carried over from English common law practice in the colonial era, and by 1869, 29 out of 36 states barred convicted felons from voting.

Other Democratic presidential contenders like Beto O’Rourke and Andrew Yang have argued that certain violent criminals, like murderers, deserve to lose the right to vote. In April, O’Rourke said “at that point, you have broken a bond and a compact with your fellow Americans, and there has to be a consequence in civil life.”

But according to Chiraag Bains, director of legal strategies at the progressive think tank Demos, such laws emerge “specifically to strip black political power,” not out of some moral code.

He pointed to Massachusetts, which had no such law until incarcerated people — mostly of color — began organizing political action committees from behind bars in 1997. Within three years, the state had passed a disenfranchisement law.

“The purpose here was to strip them of their voice in our democracy,” he said. “In a criminal justice system in which black and brown people are disproportionately involved, I don’t think felony disenfranchisement is defensible.”

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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