A recent decision from a Florida federal judge that the state cannot block ex-felons who don't pay court-ordered fines and fees from voting could, if upheld on appeal, reverberate to neighboring states that have enacted similar requirements.
Voting rights activists throughout the Eleventh Circuit — which includes Florida, Georgia and Alabama — say they are closely watching the fate of U.S. District Judge Robert L. Hinkle's May 24 decision as it heads to the appeals court, where Florida intends to seek expedited review before the full appeals court, according to a filing on Friday.
A ruling from the Eleventh Circuit could have a direct impact on the felon reenfranchisement programs in all three states.
The judge said the expenses imposed on ex-felons to fund government operations are "taxes in substance, though not in name," and the state cannot prevent those who are unable to pay those legal financial obligations from voting.
"This is a watershed moment because of the effect it would have on literally hundreds of thousands of voters," Randall Marshall, executive director of the American Civil Liberties Union of Alabama, said. "This is a monumental decision."
If the Eleventh Circuit were to uphold the ruling, the impact could be felt most acutely in Alabama, where ex-felons similarly must pay all remaining legal financial obligations before being able to register to vote.
The decision is already reverberating in a similar challenge in the Middle District of Alabama, where on Wednesday, some former felons who cannot afford to pay their outstanding court-ordered fees asked the court for a preliminary injunction that would allow them to register to vote in time for elections in August and November.
The plaintiffs cited both Judge Hinkle's decision and the Eleventh Circuit's ruling in February that upheld the judge's preliminary injunction. In the latter ruling, the appeals court said Florida's requirement violates the equal protection clause of the U.S. Constitution because it punishes those who cannot pay more harshly than those who can.
The Florida decision "controls this case and requires relief in favor of plaintiffs on their wealth discrimination claim because Alabama's voting rights restoration laws are indistinguishable from Florida's in any respect relevant to the Eleventh Circuit's reasoning," the plaintiffs said in the filing.
Alabama led a group of 10 states, including Georgia, that filed an amicus brief in Florida's appeal of the preliminary injunction and said that a win for the plaintiffs would force states to implement costly systems to determine which former felons genuinely can't pay their legal financial obligations. Faced with that prospect, many states might opt to abandon felon voting rights altogether, according to the brief.
"If states are limited in their ability to pursue reenfranchisement alongside their other interests, some states may well throw in the towel and prohibit any felon from regaining the right to vote," the states said in the brief.
Florida took a similar stance in the bench trial earlier this month before Judge Hinkle, arguing if it cannot prevent those who are unable to pay legal financial obligations from voting, then Amendment 4 — a constitutional amendment that gave former felons the right to vote and was approved by 65% of voters in 2018 — would have to be nullified. In his opinion last weekend, Judge Hinkle called this a "breathtaking attack on the will of the Florida voters."
Sean Morales-Doyle of the Brennan Center for Justice, who is on the team representing the Florida plaintiffs, said states threatening to abandon felon reenfranchisement underestimate the popular nationwide push to grant former felons increased ballot access. The success of Amendment 4 "sends a powerful message to the people of not just Florida, but the nation," he said.
In Georgia, criminal justice activists say while legal financial obligations do play a role in holding back former felons, the larger issue is the lengthy probation sentences that are regularly handed down. The state has the largest probation system in the nation, and at least a third of felony probations are 10 years long, according to Maxwell Ruppersburg, the executive director of Reform Georgia.
Under the Georgia constitution, anyone who has been convicted of a crime of "moral turpitude," which currently includes all felonies, loses his or her right to vote until the sentence is completed, which includes probation and parole. Yet the state has not defined which legal financial obligations are part of the sentence, and the application has been inconsistent, according to Ruppersburg.
"I think if you have outstanding court fines, you're still going to be kept on paper," he said. "From everything I've seen, that's considered part of your sentence. The fees part is harder to get a grasp on."
Because of the differences in Georgia's system, the effects of an Eleventh Circuit affirmation of the Florida ruling would not be so immediate, but Ruppersburg hopes it would advance the conversation about how legal financial obligations can be crippling for those trying to rebuild their lives after prison.
Doug Ammar of the Georgia Justice Project said he hopes the publicity around the case will help ex-felons in the Peach State realize they may not be barred from the ballot box. He said former incarcerated people register to vote at "an astonishingly low rate," at least in part because they assume they are not allowed to vote.
"It will educate people about what their rights are in Georgia," Ammar said. "I think it would be great because it will loosen some of the fear and some of the hesitation for people exercising the franchise."
On the other hand, a reversal of Judge Hinkle's decision could embolden state legislators to adopt a policy similar to those of Alabama and Florida, though Ammar says he does not think there is much appetite in Georgia to copy its neighbors on that front.
Florida Gov. Ron DeSantis said Tuesday that the state is definitely appealing Judge Hinkle's decision to the Eleventh Circuit.
"No other court in the country has held this," he said. "We'll see what happens, but there's obviously good grounds."
The plaintiffs are represented by Julie A. Ebenstein, R. Orion Danjuma, Jonathan S. Topaz and Dale E. Ho of the American Civil Liberties Union Foundation Inc.; Daniel Tilley and Anton Marino of the American Civil Liberties Union of Florida; Leah C. Aden, John S. Cusick and Jennifer A. Holmes of the NAACP Legal Defense and Educational Fund Inc.; Sean Morales-Doyle, Eliza Sweren-Becker, Myrna Perez and Wendy Weiser of the Brennan Center for Justice at NYU School of Law; Pietro Signoracci and David Giller of Paul Weiss Rifkind Wharton & Garrison LLP; Nancy G. Abudu and Caren E. Short of the Southern Poverty Law Center; Danielle M. Lang, Mark P. Gaber, Molly E. Danahy, Jonathan M. Diaz and Blair Bowie of the Campaign Legal Center; and Chad W. Dunn of Brazil & Dunn.
The state is represented by Bradley R. McVay and Ashley E. Davis of the Florida Department of State, Mohammad O. Jazil, Gary V. Perko and Edward M. Wenger of Hopping Green & Sams PA, and George N. Meros Jr. and Tara R. Price of Holland & Knight LLP.
The case is Jones et al. v. DeSantis et al., case number 4:19-cv-00300, in the U.S. District Court for the Northern District of Florida.
--Editing by Philip Shea.
Update: This story has been updated with Florida's bid for expedited en banc review of the Jones decision.
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Fla. Felon Vote Ruling Could Reach Beyond Sunshine State
By Carolina Bolado | May 29, 2020, 4:08 PM EDT