May 27, 2020

The Times They Are A Changin'

Come gather ‘round people, wherever you roam, and admit that the waters, around you have grown — Bob Dylan (1964)

by Susan E. Stutz

Watchmen re-enactment

We have been here before. In this moment. November 6, 2018. Voters in Florida approved Amendment 4 by almost 65%. We were jubilant as the pool of voters in Florida swelled by 1.4 million people.

And, then the Republican leadership of Florida pulled the rug out from underneath us in much the same way as they did more than 150 years ago.

Since Florida regained her statehood in the late 19th century, her leadership has successfully barred people who have been convicted of felonies from exercising their right to vote. When slavery was no longer permitted and the Reconstruction Amendments were added to the US Constitution, disenfranchisement was accomplished by inclusion of Article XIV, Section 1 in Florida's 1868 Constitution. Under this law, anyone convicted of a felony was forever barred from exercising their fundamental right to vote. While this law did not specifically name African Americans, the purpose of its enactment was to keep newly freed slaves from voting. Period. They would remain off the rolls for the next 150 years.

In the leadup to the 2018 midterms, hundreds of volunteers pounded the pavement doing the hard work that gets a citizen-driven initiative onto the ballot. In return for that effort, the people of Florida approved Amendment 4, voted to end felony disenfranchisement and return the franchise to 1.4 million of her citizens. This would mean an increase to the voter rolls by almost 10% (as of March of this year, there are 13.7 million registered voters in the Sunshine State).

Soon after the election, Governor Desantis and the GOP-majority legislature enacted SB7066 which they claimed was necessary in order for Amendment 4 to go into effect. The reality, however, was that it barred from voting those people who have been convicted of felonies who had not paid fines, restitution, and/or fees associated with their original felony sentence. The Republican administration was bound and determined to keep the voter rolls from increasing with re-enfranchised returning citizens.

The SB7066 "poll tax" meant that instead of 1.4 million new voters, there would be thousands. And, to be sure, thousands of additional voters is nothing to sneer at, but it is not 1.4 million. Those who worked to bring Amendment 4 to fruition were crushed.

Furthermore, SB7066's very design was meant to thwart the will of Florida voters by creating the State's pay-to-vote system which required payment, or proof thereof, of all monetary obligations that were handed down in a person's original sentencing judgment.

Immediately on the heels of the May 2019 enactment of SB7066, Amendment 4 and the voting rights of those 1.4 million returning citizens became the focus of a lawsuit which was brought by the national ACLU, the ACLU of Florida, the Brennan Center for Justice at NYU Law, the NAACP Legal Defense and Educational Fund, the Campaign Legal Center, the Southern Poverty Law Center, and the legal firm Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of 17 individuals convicted of felonies. The question to be answered was the constitutionality of a person convicted of a felony being required to pay, or prove that they have paid, all financial obligations included as a part of their felony sentence before they are permitted to vote.

While this lawsuit was pending, Judge Hinkle, who sits on the bench of the United States District Court, Northern District of Florida, issued a preliminary injunction that stayed the effect of SB7066. One of the biggest hurdles in obtaining an injunction is that the plaintiffs must establish a likelihood that the Court will ultimately rule in their favor. In entering the preliminary injunction, Judge Hinkle says "the State of Florida cannot deny restoration of a felon's right to vote solely because the felon does not have the financial resources necessary to pay [their] financial obligations".

The State appealed Hinkle's injunction to the Eleventh District Court of Appeals who upheldHinkle's order saying "these plaintiffs are punished more harshly than those who committed precisely the same crime---by having their right to vote taken from them likely for their entire lives. And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth. Indeed, the wealthy identical felon, with identical culpability, has his punishment cease. But the felon with no reasoned prospect of being able to pay has his punishment continue solely due to the impossibility of meeting the State's requirement".

During this same period of time, the State requested an Advisory Opinion from the Florida Supreme Court in an effort to determine the precise meaning of the word "sentence" and whether or not that definition includes financial obligations. In January of this year, Florida's highest Court answered that question in the affirmative.

In April of this year, Judge Hinkle held the trial by videoconference and on May 24th, he issued his Opinion on the Merits which says:

"When a state decides to restore the right to vote to some felons but not others, the state must comply with the US Constitution, including the 1st, 14th, 15th, and 24th Amendments. It is no answer to say, as the State does, that a felon has no right to vote at all, so a state can restore the right to vote or not in the state's unfettered discretion."

Judge Hinkle goes on to say that "when a state allows some felons to vote but not others, the disparate treatment must survive review under the Equal Protection Clause." Which it does not.

Judge Hinkle reiterates the Eleventh Circuit's finding that "the [pay-to-vote] system creates 'a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—by withholding access to the ballot box'". Both Hinkle and the Eleventh Circuit found that the State may not erect such a barrier to the ballot box.

Judge Hinkle's ruling also finds that while fines imposed by the Court at the time of sentencing, along with restitution ordered to be paid to the victim (this can be a person or the State itself), do not equate to a tax. The same cannot be said for the fees.

Fees assessed by the Court at the time of sentencing have no relation to a defendant's culpability. They are meted out to every defendant in the same amount regardless of guilt and are used for the primary purpose of funding the criminal justice system and court-related programs, such as a victim-compensation fund. Judge Hinkle found that this usage makes those fees "a tax by any other name" and therefore their use as a barrier to the ballot box is unconstitutional.

So what does all of this mean for Florida's population of people with felony convictions now? Well, it means that 1.4 million returning citizens may find enfranchisement within reach after all. That indeed "the waters around us have grown."

If you are impacted by Amendment 4 or know someone who is, you can request an Advisory Opinion from the Division of Elections by using this form. Per Judge Hinkle, once you submit the Request, the Division of Elections has 21 days in which to issue their Opinion. If they do not do so within the 21-day period, "the State must not take any step to prevent, obstruct, or deter the requesting person from registering to vote and voting, unless on grounds unrelated to unpaid financial obligations".

Furthermore, Judge Hinkle says that if you meet the following criteria, then, barring credible evidence on the part of the Division of Elections, you are eligible to register to vote:

  1. you had a public defender in your most recent criminal proceeding that resulted in a felony conviction, or
  2. you were found to be indigent in your most recent criminal proceeding that resulted in a felony conviction, or
  3. you submitted a financial affidavit (this is the form used in Florida's criminal proceedings) along with your Request for an Advisory Opinion, or
  4. if all of your financial obligations (fines and/or restitution) have been converted to civil liens

If the Division of Elections does issue an Advisory Opinion in response to your request, it must include the exact amount of your balance due---not an approximate amount and not just the amount originally ordered to be paid. They must also tell you how they calculated your balance due.

If you have been convicted of a felony and have questions about your ability to register and vote in the upcoming primary and general elections, the folks at the Florida Rights Restoration Coalition can help. Call their hotline at 1-877-My-Vote-0 (877-698-6830).

And, when it comes time to register to vote, Resistbot is here for you! Send REGISTER to Resistbot and we will take you through the voter registration process. Once you are registered, you can even sign up for monthly alerts to make sure that you stay registered and do not get dropped from the rolls. You can also send polls for the location of and directions by car and by foot so you know where to be on Election Day if voting in person is your only option. Send absentee and we will give you information on how to vote by mail, which is your safest option in the time of COVID-19.

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