(CN) — On a day when millions of Floridians will cast ballots in the state’s primary election, a 10-member panel of the 11th Circuit heard arguments Tuesday over whether felons who cannot pay fines or fees have the right to vote.
The hearing, held via Zoom due to the Covid-19 pandemic, follows a year of litigation after the passage of SB 7066, a law requiring felons to pay all restitution, fines and fees before they are eligible to vote.
Republican state lawmakers passed the controversial measure just months after Florida voters overwhelming approved Amendment 4, a constitutional amendment restoring voting rights to most felons “after they complete all terms of their sentence including parole or probation.” The amendment did not mention restitution or fines.
Last year, the Campaign Legal Center, ACLU and NAACP sued the state and, after an eight-day trial in May, U.S. District Judge Robert Hinkle ruled the 24th Amendment prohibits Florida from conditioning voting on payment of fines and fees.
The law, Hinkle said, was a “pay-to-vote system.” His decision required county supervisors of elections to allow felons to fill out a form attesting to indigency before registering.
Days later, Republican Governor Ron DeSantis lodged an appeal to the 11th Circuit, which halted the voting registration of thousands of felons in the run-up to the August primary and November general election.
During Tuesday’s oral arguments, the en banc panel focused on whether fines and fees can be categorized as a tax, and thus violate the 24th Amendment, or if they are simply part of the sentence.
“Are the felons who wish to be re-enfranchised really paying a fee to vote or are they paying fines and other financial penalties as a result of their debt to society?” U.S. Circuit Judge Britt Grant asked Julie Ebenstein, one of the attorneys for the 17 plaintiffs with felony convictions.
“Your honor, if we look at two people similarly situated – one that can afford to pay and one that cannot – only for the person who cannot afford to pay is the disenfranchisement ongoing,” said Ebenstein of the ACLU. “Disenfranchisement is not just a single momentary penalty. It’s an ongoing punishment as the individual misses election after election.”
Grant, an appointee of President Donald Trump, interjected: “It is not a tax put on them to vote, but a preexisting requirement.”
“It would read the 24th Amendment too narrowly to say that only those taxes which are specific imposed for the purpose of disenfranchisement, disenfranchise,” Ebenstein said.
Charles Cooper, representing the governor, disagreed.
“The financial terms of a felon’s sentence were imposed because he committed a felony and the state’s continuing demand that he pay them is not some new and different punishment,” said Cooper of the Washington D.C. firm Cooper & Kirk.
U.S. District Judge Barbara Lagoa, another Trump appointee, brought up provisions in SB 7066 that allow for other ways felons could satisfy their financial obligations, such as converting the amounts to community service or asking a court to modify the original sentence.
“Sometimes they are not available at all, all the time they are discretionary and many of the times they are illusory,” Ebenstein replied. “It is not a real option for most people.”
The judges also touched on the state’s byzantine patchwork of record-keeping that prevents many felons from learning about outstanding financial obligations before registering to vote. Florida does not have a statewide database of those who owe restitution and fines.
“The state has shown a staggering inability to deal with that issue,” U.S. Circuit Judge Beverly Martin, a Barack Obama appointee, told Cooper, the state’s attorney. “How do they know what the obligations are if the state cannot show them?”
“Florida did not get its act together as quickly as we would have hoped,” Cooper admitted. “The remedy is not to throw out the financial obligations out the window.”
He said felons could contact their attorney or go through the state’s advisory opinion process, in which a hearing is held on the individual’s ability to pay. Cooper also suggested felons could register to vote and find out.
“They will also know it if they believe they have paid it and they register to vote,” he said. “Then the process to determine whether the new registrant is eligible will kick in and the state will investigate the facts concerning eligibility.”
U.S. Circuit Judge Jill Pryor, another Obama appointee, scoffed.
“If they go through that process, the person has represented that they paid all fees under penalty of perjury, even though they have no idea,” she said.
The case, Jones v. DeSantis, could have lasting implications for politics statewide and nationally as Florida’s elections typically have razor-thin margins. In the 2016 presidential election, Donald Trump took the state with less than 120,000 votes.
More than 774,000 Florida felons have some type of legal financial obligation, according to a study submitted to the district court.
The decision to rehear the case is rare. In February, a three-judge panel of the court upheld an earlier ruling by Hinkle, a Bill Clinton appointee, that granted voting rights to the 17 felons in the case. When DeSantis’ attorneys first asked for a full court hearing on that more limited decision, the circuit judges declined.
After the 11th Circuit blocked Hinkle’s May decision, expanding voting rights to all felons who can afford to pay fines and fees, the plaintiffs appealed to the U.S. Supreme Court. Last month, the high court refused to lift the 11th Circuit’s temporary order.
The plaintiffs then tried to disqualify two of the 11th Circuit’s judges: Lagoa and Robert Luck, former Florida Supreme Court justices who joined an advisory opinion regarding the language and intent of Amendment 4 last year. They were unsuccessful. Both judges are Trump appointees.
Prior to the passage of Amendment 4, Florida had the highest number of disenfranchised felons in the country, according to a 2016 report by the Sentencing Project. The Sunshine State was one of only three states that banned ex-convicts from voting for life.
The judges did not indicate when they will reach a decision in the case.
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