FORT LAUDERDALE, Fla. – An attorney representing the state of Florida told a federal appeals court Tuesday the state can legally require felons to fully pay all fines, fees and restitution before allowing them to vote, while attorneys representing some felons argued that constitutes an illegal poll tax and discriminates against the poor.
The 10 judges of the U.S. 11th Circuit Court of Appeals hearing Florida's challenge of a lower court ruling on the state's Amendment 4 appeared divided and uncertain about the case, peppering attorneys for both sides with questions about the monetary requirement.
The amendment, adopted overwhelmingly by voters in 2018, lifted a lifelong voting ban on approximately 1.4 million felons, saying they regained the right once they complete their sentence. The felons' attorneys argue the sentence ends when they complete their incarceration and probation; the state argues felons also have to pay all money owed or get a waiver from a judge.
Attorney Nancy Gbana Abudu, representing the felons, told the Atlanta-based court that Florida's position unconstitutionally discriminates against those poor “who are genuinely unable to pay.”
“We are asking this court to uphold a foundational principle that when it comes to voting, the size of a person's pocketbook alone should never determine access to the ballot box,” Abudu told the judges, who were meeting online because of the coronavirus pandemic.
Attorney Charles Cooper, representing the state, argued the amendment as presented to the voters specifically said the right to vote would only be restored when all portions of the sentence are complete. He said fines and other monetary damages are not a tax because they are imposed as criminal punishment.
“The voters decided that the right to vote of a person who lost it as a consequence of his conviction of a felony should be restored only if he has paid the full debt he owes to society,” Cooper said.
U.S. District Court Judge Robert Hinkle ruled against the state in May, saying that imposing a monetary requirement on felons who are too poor to pay violated the U.S. Constitution's 24th Amendment prohibition on poll taxes. He also said requiring any felon to pay court costs that are imposed separately from a fine as a requirement to vote is also a poll tax. A University of Florida study showed that almost 80% of felons owe some money, with 60% owing at least $1,000 and 19% at least $10,000.
Republican Gov. Ron DeSantis appealed Hinkle's ruling, which will likely put it on hold beyond the November presidential election in the nation's largest swing state. Even if the 11th Circuit rules before the state's Oct. 3 voter registration deadline, its decision will likely be temporarily set aside as the loser seeks to have the case heard by the U.S. Supreme Court.
At Tuesday's hearing, the felons' attorneys cited the difficulties their clients face paying their fines and fees even if they can afford them because there is no central database telling them how much they owe.
They also called the state's argument that fines can also be satisfied through community service “illusory” as not all counties offer that option and felons only get $10 credit per hour, making it nearly impossible to pay judgements that can reach tens of thousands of dollars. The monetary requirement will prevent some indigent felons from voting for decades or a lifetime, they said.
“Disenfranchisement is not just a single momentary penalty; it is ongoing as individuals miss election after election,” attorney Julie Ebenstein said.
Cooper argued that if a state can constitutionally bar all felons from voting under the 14th Amendment, as Florida did for 150 years, it can impose conditions for them to regain that right such as paying fines.
He also said it is incorrect to say felons who can’t afford to pay are being punished more harshly than those who can because fines and other monetary damages are imposed based on the person's crime, not their economic status.
The state does not track how many felons have registered to vote since Amendment 4 passed, but its backers estimate that the monetary requirement and the pandemic have limited the number to 100,000, less than 10% of those potentially eligible.
The Florida Rights Restoration Coalition has raised more than $4 million to help pay court costs. Donations have come from retired basketball star Michael Jordan as well as More Than a Vote, an organization dedicated to maximizing Black turnout that counts basketball star LeBron James and comedian Kevin Hart among its backers. Still, the total owed could be as high as $3 billion.