TALLAHASSEE, Fla. – Three appellate judges poised to help determine whether hundreds of thousands of felons can vote in Florida’s upcoming elections should be disqualified from a closely watched voting-rights lawsuit, plaintiffs said in documents filed Wednesday.
Two of the targeted 11th U.S. Circuit Court of Appeals judges, Barbara Lagoa and Robert Luck, were picked by Gov. Ron DeSantis to serve on the Florida Supreme Court shortly after he took office in 2019. The former justices later left the state court after being appointed by President Donald Trump to the Atlanta-based federal appeals court.
Wednesday’s move to disqualify Lagoa, Luck and Judge Andrew Brasher is the latest twist in a legal challenge to a 2019 Florida law requiring felons to pay “legal financial obligations” -- fees, fines, costs and restitution -- to be eligible to vote. Voting-rights groups that filed the lawsuit argue that linking voting rights and finances amounts to an unconstitutional “poll tax.”
The state law, approved by Republican legislators and signed by DeSantis last year, was aimed at implementing a constitutional amendment approved by Florida voters in 2018. The amendment restored voting rights to felons “upon completion of all terms of sentence, including parole or probation.”
U.S. District Judge Robert Hinkle in May cemented an October preliminary injunction in which he decided the state cannot deny voting rights to felons who cannot afford to pay court-ordered financial obligations associated with their convictions.
DeSantis appealed Hinkle’s ruling, and in an unusual move, the 11th Circuit agreed to what is known as an “en banc,” or full court, initial review of the case. Three-judge panels nearly always conduct initial reviews of appeals.
The appellate court also put Hinkle’s ruling on hold and scheduled oral arguments in the case for Aug. 18, the same day as Florida’s primary elections.
But in the filing Wednesday, plaintiffs argued that Lagoa and Luck should not be allowed to participate in the case because they were involved in the litigation while they served on the Florida Supreme Court.
In written testimony provided to the U.S. Senate prior to their confirmations to the federal court, Lagoa and Luck said “they would recuse themselves from any case involving the Florida Supreme Court while they were justices or in which they played any role -- commitments that are triggered here,” lawyers for the Campaign Legal Center wrote in a motion joined by other plaintiffs in the voting-rights case.
The code of conduct governing federal judges also “requires disqualification when judges participated, in a prior judicial position, concerning the litigation,” the lawyers added.
“Their failure to adhere to their broad commitments to the Senate Judiciary Committee (and the public), and to the Code of Conduct, would cause their impartiality to ‘reasonably be questioned,’” the lawyers wrote.
The wrangling over the Florida law hinges on the Legislature’s interpretation of the phrase “all terms of sentence” in the constitutional amendment. As Hinkle was considering the voting-rights litigation last year, DeSantis asked the Florida Supreme Court for an advisory opinion on the issue.
On a Senate Judiciary Committee questionnaire, Luck pledged to recuse himself “from any case where I ever played a role,” according to court documents filed Wednesday.
“The impartiality of judges, and the appearance of impartiality, are important for ensuring public confidence in our federal courts,” he wrote on the questionnaire.
In her questionnaire, Lagoa promised “to recuse myself from any case in which I participated as a justice on the Supreme Court of Florida.”
Luck and Lagoa participated in oral arguments about the felons-voting case at the Florida Supreme Court on Nov. 6. They were confirmed to the 11th Circuit later in November, prior to the issuance of the Florida Supreme Court advisory opinion in support of DeSantis’ position on Jan. 16.
The former justices “actively participated” in the arguments concerning the Florida constitutional amendment, the plaintiffs’ lawyers argued.
“This is plainly a case ‘involving the Supreme Court of Florida’ while Judge Lagoa ‘was a member of (that) court,’” the attorneys wrote. “Likewise, it is plainly a case where Judge Luck ‘ever played any role.’”
Brasher, a former solicitor general of Alabama, should also be disqualified because he participated in litigation “challenging the same government policy” as the Florida challenge in a 2016 case known as Thompson v. Alabama, the plaintiffs argued.
“In that capacity, Judge Brasher wrote and signed multiple briefs arguing the same legal positions advanced by appellants in this case,” the lawyers wrote.
Brasher, who joined the court on June 30, also filed what is known as an amicus, or friend-of-the-court, brief supporting the state’s position in the Florida case, the plaintiffs noted.
Brasher, in seeking confirmation from the Senate, “pledged to recuse from any case involving a government policy that he previously defended and for two years to recuse from any case in which the Alabama attorney general’s office represents a party,” they argued.
“His recusal is required in keeping with his public commitment, the code of conduct, and federal law,” the plaintiffs wrote.
The DeSantis administration also cited the Alabama case, in which Brasher was lead counsel, as a “related case” in the Florida litigation, they noted.
One of the 12 federal judges on the Atlanta-based appeals court, Robin Rosenbaum, already has disqualified herself from the Florida case. Rosenbaum was a federal district judge in South Florida before being appointed to the appeals court in 2014.
Whether Luck, Lagoa and Brasher -- who were all appointed by Trump -- participate could have a significant impact on the outcome of the case, which could determine whether hundreds of thousands of felons can cast ballots in the Nov. 3 general election, where the Republican president is on the top of the ticket.
Trump has appointed half of the conservative-leaning appellate court’s 12 judges. In addition to Luck, Lagoa and Brasher, the president also tapped Judges Kevin Newsom, Elizabeth Branch and Britt Grant.
President George W. Bush appointed Chief Judge William Pryor, and former President Bill Clinton appointed Judge Charles Wilson. Former President Barack Obama appointed Judges Beverly Martin, Adalberto Jordan, Jill Pryor and Rosenbaum.
Meanwhile, the U.S. Supreme Court on Thursday ruled against the plaintiffs in a challenge to the 11th Circuit’s decision to place a hold on Hinkle’s ruling. The plaintiffs had argued that the stay on Hinkle’s ruling would block felons from voting in the August primary elections and could prevent them from casting ballots in November.