By: Sarah Johnson
After a nearly two year long battle, most ex-felons in Florida have had their voting rights restored…for now. On Sunday, May 24th, US district court Judge Robert Hinkle ruled that a bill the legislature passed to undermine an amendment passed by the people of Florida to restore voting rights to felons was unconstitutional. Let’s take a look at the situation, the amendment, the bill, and court’s decisions.
What led to Amendment 4 being proposed?
Prior to 2018, ex-felons in Florida had to go through an incredibly complicated process to regain their right to vote. If someone convicted of a felony in the state wanted to vote, they had to have their right to vote individually restored by a state board (the Executive Clemency Board). But convicted felons could not start this process immediately after completion of their sentence. Governor Rick Scott’s administration required people to wait between five and seven years after the completion of their sentence to make a request to the board to consider the restoration of their voting rights. In 2018, Florida, Iowa, Kentucky, and Virginia were the only four states in the US to require felons to have their right to vote get restored on an individual basis by a state run body.
Florida’s felon voting disenfranchisement law was added to the original Florida Constitution by initiative in 1992. Article VI titled “Suffrage and Elections” in Section 4, detailing the disqualifications for voting, reads:
Florida’s disenfranchisement process was first challenged in April 2005. In Johnson v Bush, the US Court of Appeals for the Eleventh Circuit upheld this process as constitutional and stated it was not in violation of Voting Rights Act. Then, a ruling at the beginning of 2018 changed the situation. US District Court Judge Mark Walker ruled in February 2018 that Florida’s process for the restoration of voting rights for ex-felons was unconstitutional. In his ruling, he said the process of going to the board violates the First Amendment (which protects the right to freedom of religion and freedom of expression from government interference) and the Fourteenth Amendment (which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). He did not, however, rule Florida’s felon disenfranchisement itself was unconstitutional. Cue Amendment 4.
What is Amendment 4?
The Second Chances coalition in Florida successfully gathered over 1.1 million signatures in support of having Amendment 4 put on the November 2018 ballot. Only 766,000 signatures are needed to introduce an amendment in Florida. Amendment 4, titled “Voting Rights Restoration for Felons Initiative”, aimed to allow the state to automatically restore the right to vote for people with certain prior felony convictions upon completion of their sentences; eliminating the five to seven year wait and need for individual board approval. This change in access to voting would not apply to felons convicted of murder or a felony sexual offense. “Sentences” were defined has completed time assigned to a person in prison, on parole, or on probation.
The language on the ballot was:
This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.
After the November 2018 elections, Amendment 4 passed with almost 65% of the vote. Because it received more than 60% of the vote, it was to be immediately adopted.
What was the bill the Legislature passed in response?
Florida lawmakers proposed and passed legislation last year which undermined much of what Amendment 4 had accomplished. They did this by broadening the definition of “completion of sentence” and redefining the types of crimes considered exempt from Amendment 4. The bill, S7066, crossed over on April 26th last year, passed on May 3rd, and was signed by the Governor on July, 1, 2019.
This bill put forth a new definition for “completion of all terms of sentence”. The new definition stated “any portion of a sentence that is contained in the four corners of the sentencing document” must be completed to qualify for voting rights under Amendment 4. This new definition required people to not only have completed any time mandated in prison, on parole, and on probation, but to have also paid, in full, all fees associated with their conviction. The bill states that full payment of “restitution ordered to a victim by the court as a part of the sentence” and “fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole” is required. The legislation does specify that these required financial obligations “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.”
Then, the bill expanded the defined crimes exempted from Amendment 4. The bill states that “felony sexual offense” means “any felony offense that serves as a predicate to registration as a sexual offender”. As you may be aware, crimes ranging from child trafficking to sexting, if convicted, can require registration as a sex offender. The bill states that “murder” means a violation of any of the listed sections which results “in the actual killing of a human being”. This expanded the definition to also include crimes like manslaughter.
How did this week’s ruling happen?
Critics condemned S7066 as a “modern day poll tax” and said it was unconstitutional. Not only was this legislation prohibiting people from voting if they are unable to afford the fees, but, it was widely reported that there was no system setup to enable people to find out how much they owe. If people do not know how much they owe, how would they pay it off even if they did have the means to do so?
Two months after he signed S7066, in August 2019, Governor Ron DeSantis asked the Florida Supreme Court to issue an advisory opinion as to whether “completion of all terms of sentence” under Amendment 4 “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.”
Jones v. DeSantis, the original case brought against S7066, was heard in October 2019. The suit argued that the legislation was unconstitutional because it denied the right to vote based solely on an individual’s inability to pay all fines, fees, and restitution associated with their conviction. Hinkle ruled that “Each of these plaintiffs have a constitutional right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.” His ruling only applied to the 17 plaintiffs, but the state appealed the ruling.
On January 16, 2020, the Florida Supreme Court issued the advisory opinion requested by DeSantis. They concluded the phrase “all terms of sentence” as used in Amendment 4, includes payment of legal financial obligations imposed in conjunction with a felony conviction, or, is inline with what S7066 put forth. But, just a month later, the 11th U.S. Circuit Court of Appeals upheld Hinkle’s ruling in Jones v. DeSantis. After the ruling was upheld in February, other existing lawsuits against S7066 were rolled into Jones v. DeSantis.
This week, on May 24th, Judge Hinkle issued a 125 page ruling on the new Jones v DeSantis suit. In his decision, Judge Hinkle wrote that the state “cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.” He went on to note the law had an obvious racial impact, “Why is it that all the Republicans voted yes and all the Democrats voted no? That is not a coincidence. It would be stunning if somebody told me that they did not realize that African-Americans tend to vote Democratic more than Republican.”
The Florida Rights Restoration Coalition (FRRC), a grassroots group instrumental in the effort to pass Amendment 4, released a statement about the decision.
This court decision adds another remarkable chapter in our fight as returning citizens to participate in our democracy. We will remain vigilant in our commitment to place people over politics, and ensure that all returning citizens, no matter how they may vote, have an opportunity to possess what we believe to be the most endearing sign of citizenship, the right to vote. As the leaders of Amendment 4, we are looking forward to utilizing this court ruling to expand on our registration efforts to create a more inclusive democracy, make voting exciting again, and to coalesce the voices of returning citizens to create a more just and equitable justice system.
The state is expected to appeal Hinkle’s decision. This means that participation in the upcoming November elections remains uncertain for many. It has been very upsetting to read coverage about this bill and the fact that even if people had the means to pay their fees that they could not figure out how much they owed. If we insist on putting obstacles in the way of people, it should at least be possible to reach the finish line. Only time will tell if this decision holds and if these citizens will see their voting rights restored.
Cover Photo by Parker Johnson on Unsplash
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