Florida governor invokes rarely used power asking for justices' opinion
Gov. Ron DeSantis asks justices to weigh in on felons' rights
TALLAHASSEE, Fla. – A week after asking a federal judge to toss out a lawsuit on the issue, Gov. Ron DeSantis is seeking guidance from the Florida Supreme Court about a controversial state law requiring people convicted of felonies to repay financial obligations before they can regain the right to vote.
With a federal lawsuit already filed, some believe the governor’s letter asking for an opinion is an attempt to get a state court, the Florida Supreme Court, to make a decision before federal court rules.
“It is ultimately my responsibility, through the Department of State, to ‘protect the integrity of the electoral process’ by maintaining accurate and current voter registration records, including ensuring only eligible voters remain on the statewide voter registration system,” DeSantis, a Harvard-educated lawyer, wrote in a four-page letter to the Supreme Court on Friday.
But some Democrats blasted DeSantis for turning to the Supreme Court, even as the state law is the focus of a federal lawsuit. As a candidate last year, the Republican governor did not support the constitutional amendment to restore felons’ rights.
“My take is that it’s a continuation of a party who is hell-bent on trying to deprive citizens of the right that the people of the state of Florida indicated they should have,” state Sen. Perry Thurston, a Fort Lauderdale lawyer and former chairman of the Legislature’s black caucus, told The News Service of Florida on Friday.
The law, approved during the legislative session that ended in May, was intended to carry out a constitutional amendment that granted restoration of voting rights to felons “who have completed all terms of their sentence, including parole or probation.” The amendment excluded people “convicted of murder or a felony sexual offense.”
The interpretation of “all terms of their sentence” spawned some of the session’s most-intense partisan divides as lawmakers struggled to reach consensus about what it meant. The law, signed by DeSantis in late June, requires “financial obligations” ordered by courts as part of sentencing -- including fines, fees and restitution -- to be paid in full for voting rights to be restored.
The law also allows judges to modify financial obligations other than restitution that were part of sentences. And the law allows judges to convert financial obligations to community service hours. Under that scenario, financial obligations are considered paid in full once community service is complete.
But voting- and civil-rights groups quickly challenged the law in federal court. They allege that hinging the right to vote on finances amounts to an unconstitutional “poll tax” and is a vestige of Jim Crow-era policies aimed at preventing black voters from participating in elections.
Republican legislators and attorneys representing the DeSantis administration, however, maintain that the law is more permissive than the language of the amendment.
DeSantis’ lawyers last week asked U.S. District Judge Robert Hinkle to dismiss the lawsuit, arguing the challenge belongs in state, not federal, court.
DeSantis then followed up Friday by asking the Florida Supreme Court for an opinion about “whether ‘completion of all terms of sentence’ … includes the satisfaction of all legal financial obligations -- namely fees, fines and restitution ordered by the court as part of a felony sentence that would otherwise render a convicted felon ineligible to vote.”
Sen. Jose Javier Rodriguez, a Miami Democrat who is another Harvard-educated lawyer, questioned the request, pointing out that the constitutional amendment went into effect in January and the new law went into effect on July 1.
“It sounds suspicious,” Rodriguez said. “It’s August. It just seems a little suspicious why he would be seeking the Supreme Court to weigh in at this juncture.”
As soon as the amendment went into effect, Floridians who were convicted of felonies and who had completed their time behind bars -- called “returning citizens” by the amendment’s supporters -- began registering to vote, and some have already cast ballots in municipal elections.
While most backers of the amendment insisted that the Legislature did not need to implement the measure, county elections supervisors said they needed guidance from lawmakers on its interpretation. Part of the problem, the local officials said, is that there is no single database containing information about felons’ repayment of fines, fees and restitution.
The new law ordered the Department of State to “obtain and review information” related to individuals who register to vote “and make an initial determination on whether such information is credible and reliable regarding whether the person is eligible” to vote under the amendment. The department sends the information to local elections supervisors, who make the final decision about whether the person should be removed from the voting rolls.
DeSantis pointed to that process in Friday’s letter asking the state Supreme Court for an “advisory opinion.” He wrote that he has “the constitutional duty to transact business with” the Department of Corrections, county elections supervisors, the Florida Department of Law Enforcement, the Florida Commission on Offender Review and other entities “regarding the collection of information related to the eligibility of voters” under the amendment.
“We share the task of protecting the integrity of elections throughout Florida,” the governor wrote, adding that he wanted to “ensure the proper implementation” of the amendment.
The Department of State has to determine whether convicted felons have completed all terms of their sentences, including the satisfaction of legal financial obligations, DeSantis wrote.
“I will not infringe on the proper restoration of an individual’s right to vote under the Florida Constitution,” he added.
But Thurston, a fierce opponent of the implementation law, said voters understood the amendment to mean that people who’ve served their time would automatically have their voting rights restored.
“That is what the plain language said. That is what the people thought they were voting for,” Thurston said. “What he’s really trying to do is to thwart the will of the people of the state of Florida.”
DeSantis, who appointed three new justices to the Florida Supreme Court shortly after taking office in January, also noted in Friday’s request that he was not asking the state court “to address any issues” regarding the federal lawsuit.
But a finding from the Florida Supreme Court that the law upholds the Constitution could bolster the state’s arguments in the federal case. And state and local elections officials could rely on such a court opinion if decisions to remove people from the voting rolls are challenged.
DeSantis’ Friday letter to the Supreme Court mirrored language in the state’s motion to dismiss the federal case. It referred, in part, to statements the amendment’s backers have made in addressing the Florida Supreme Court and Secretary of State Laurel Lee.
During arguments before the state court in 2017, Supreme Court Justice Ricky Polston asked Jon Mills, a former University of Florida law school dean and onetime speaker of the Florida House who helped craft the amendment, whether “all terms” of a sentence included full payment of any fines.
Mills replied that “all terms means all terms within the four corners” of the sentencing document, including restitution.
After the constitutional amendment passed, supporters wrote to Lee that “completion of all terms of sentence” includes “any period of incarceration, probation, parole and financial obligations imposed as part of an individual’s sentence.”
Human rights attorney and Florida State University law professor Mark Schlakman thinks having a state court rule on a state constitutional question is a good idea.
“One might surmise that if any entity is to interpret the Florida Constitution as a result of the amendment becoming effective, that authority should be the Florida Supreme Court,” Schlakman said.
The request for the court's opinion is rare. Governors have asked the court for advice just eight times since 1989.
The last time the court was asked for an opinion was in 2010 by then-Gov. Charlie Crist. It had to do with the governor’s authority to fill vacancies in the judiciary.
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