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Felons' voting fight ratchets up at state Supreme Court

Photo: News Service of Florida

TALLAHASSEE, Fla. – In a bundle of competing briefs filed with the state Supreme Court, Florida officials squared off this week against supporters of a constitutional amendment that restores voting rights to felons who have completed their sentences.

Gov. Ron DeSantis, Secretary of State Laurel Lee, and Florida House and Senate leaders filed "interested party" briefs defending a state law that implemented what appeared as Amendment 4 on the November ballot.

But critics of the law counter that part of it requiring felons to pay fees and costs to be eligible to have voting rights restored contradicts what more than 64 percent of Floridians thought they were approving last fall.

The constitutional amendment granted voting-rights restoration to felons "who have completed all terms of their sentence, including parole or probation," excluding people "convicted of murder or a felony sexual offense." 

Voting rights advocates and civil rights groups filed a federal lawsuit shortly after DeSantis signed the law (SB 7066) designed to implement the amendment. The law requires felons to pay "legal financial obligations," such as restitution, fines and fees, to be eligible to have voting rights restored.

The plaintiffs in the federal lawsuit allege the law imposes an unconstitutional "poll tax" and violates a number of other constitutional rights. But state officials maintain the terms of sentence include financial obligations ordered by courts.

In the midst of the federal lawsuit, DeSantis asked the Florida Supreme Court to weigh in on whether the law adheres to the wording of the amendment, an issue not addressed in the federal complaint.

The 10 briefs filed Wednesday by interested parties came in advance of oral arguments in the case, scheduled for Nov. 6.

In one of the briefs filed Wednesday in opposition to the state law, the Fair Elections Center said that costs and fees "are categorically not terms of sentence because they bear none of the hallmarks of sentencing," in part because they are "non-punitive and simply serve to compensate the government for the costs of administering criminal justice."

Although some court-related fees and costs may be part of a judgment or a condition of supervised release, "all of them share common features that render them non-punitive," lawyers for the voting-rights group argued.

But under Florida law, "sentencing is synonymous with punishment: a sentence is the means by which punishment is imposed," the lawyers wrote.

"Because sentencing and punishment are coextensive, which is to say that all terms of a sentence are punitive, if a requirement is non-punitive in nature then it is categorically not a term of the sentence," they added.

But lawyers representing the Republican-controlled Florida House argued that fines and restitution are examples of non-imprisonment sentences under Florida law.

"A sentence can include a fine, restitution, fees and costs, and probation. Even a prison sentence can include a period of probation or parole, each with conditions that require full payment of restitution. All of these aspects of Florida's sentencing scheme work in tandem to achieve Florida's sentencing purposes," the House's lawyers wrote.

In a separate brief, lawyers representing a variety of civil-rights groups -- the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund, the Brennan Center for Justice at NYU School of Law and branches of the NAACP -- relied in part on the state's history "of denying votes" to blacks to illustrate opposition to the state law's linkage between finances and voting rights.

"Historically, Florida disenfranchised a higher percentage of its adult citizens than any other state in the United States, more than 10 percent of the overall voting age population, and more than 21 percent of the African-American voting age population," the civil-rights groups' lawyers wrote in a 67-page brief.

While the estimated number of Floridians affected by Amendment 4 varies, the civil-rights groups pointed out that many reports indicated that approximately 1.4 million Florida felons who are no longer serving time in jail or prison -- referred to as "returning citizens" -- became eligible to vote after the amendment's passage.

Those people can't register to vote until they settle outstanding legal financial obligations, the lawyers argued.

"The Florida Legislature and governor's action reinstates a system of lifetime disenfranchisement for a large number of returning citizens -- imposing precisely the system that Floridians clearly rejected when they overwhelmingly approved Amendment 4," the civil-rights groups argued.

The groups asked the Supreme Court to refuse to answer the question posed by DeSantis, which they called "a discretionary" decision of the court.

The question of whether people with felony convictions must repay legal financial obligations "primarily concerns fundamental voting rights of private individuals," and therefore is "more appropriately resolved in traditional, contested litigation rather than through an advisory opinion," lawyers for the ACLU and others wrote.

But lawyers for DeSantis argued that "a plain language analysis" of the constitutional amendment "reveals that the phrase ‘completion of all terms of sentence including parole or probation' includes fulfillment of all fines, fees and restitution imposed by the court at sentencing and contained in the four corners of the sentencing document."

A "common-sense understanding also dictates in favor of the governor's plain-language interpretation" of the amendment, DeSantis' lawyers wrote in a 33-page brief.

"Case law and common understanding consistently recognize that courts impose fines, fees, and restitution as part of a sentence and thus as penalties for criminal acts," they wrote.