Federal Court Strikes Blow to Voting Rights in Florida Felony Disenfranchisement Case

Posted by News Beat on September 22, 2020  •  10 min read
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A federal appeals court earlier this month affirmed a controversial Florida law requiring people with felony convictions to pay court fees in order to have their voting rights restored.

With less than 50 days until the November election and with only a few weeks until the deadline to register to vote, the 6-4 ruling all but ensures hundreds of thousands of Floridians won't be able to participate, barring unforeseen circumstances.

That leaves the more than 1 million estimated people with felony convictions with few options heading into a contentious election.

Florida Felony Disenfranchisement Ruling: What Did The Court Decide?

On Sept. 11, the U.S. Court of Appeals for the 11th Circuit, in a 6-4 decision, reversed a lower court's ruling that was favorable to Floridians seeking to have their voting rights restored. The court said: "Because the felons failed to prove a violation of the Constitution, we reverse the judgment of the district court and vacate the challenged portions of its injunction."

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The lower court had issued an injunction permitting those who did not have the means to pay court fees or restitution to register to vote. By overturning the injunction, the federal court affirmed a 2019 law signed by Gov. Ron DeSantis that requires anyone with a felony conviction to satisfy court fees, including restitution, along with sentencing and probation terms, before regaining voting eligibility.

How Did Voting Rights Advocates React To The Decision?

Appearing in this bonus podcast, Julie Ebenstein, a senior staff attorney with the American Civil Liberties Union (ACLU) Voting Rights Project, called the ruling "disappointing" considering that previous courts agreed that the 2019 law created wealth-based burdens to voting and functioned as a modern-day poll tax. 

"We won a preliminary injunction back in October of last year, and the Court of Appeals agreed with the trial court and approved that injunction," Ebenstein tells News Beat podcast. "In February of this year, we went to trial, just at the beginning of the pandemic by video... And we were successful. And the trial court, we showed evidence that making people pay to vote violates the 24th Amendment's prohibition on poll taxes, the 14th amendment because it's wealth discrimination in voting and the due process clause of the 14th amendment, because Florida can't even tell people how much they owe and how much they have to pay to vote."

"Unfortunately, we then went in front of the Court of Appeals in mid-August and got a decision back just a couple of weeks ago overturning what every other court that has looked at this in the last year and a half has said," she continues. "So the 11th Circuit Court of Appeals now decided that Florida's law is constitutionally valid and will stay in effect for the upcoming election."

It's unlikely courts can settle the matter in time for Floridians to register to vote. However, the Florida Rights Restoration Coalition, one of the architects of the Amendment 4 initiative, has created a fund for people to donate to help pay fees for those currently ineligible to vote.

What's Felony Disenfranchisement?

Felony disenfranchisement is a Jim Crow-era law that essentially bars people with felony convictions from voting. As of 2016, more than 6 million such people were outlawed from voting in the United States, according to The Sentencing Project, a nonprofit. At the time that Florida's Amendment 4 was passed, it was considered the largest expansion of voting rights in years. You can learn more about felony disenfranchisement in this News Beat podcast episode.

For more on the recent court hearing and the brief history of Amendment 4, listen to this special bonus episode featuring the aforementioned Julie Ebenstein of the ACLU. The transcript below has been edited for clarity. 

News Beat: Julie, thanks for joining us. Can you explain the significance of the referendum from two years ago, which voters overwhelmingly approved?

Julie Ebenstein: "So Florida voters in November of 2018 through a citizen-initiated amendment updated their state constitution to permit 1.4 million of their fellow citizens with a prior conviction to rejoin the electorate and to be able to vote. Before 2018, Florida was really an outlier among states. Any felony conviction took away people's right to vote for life. The politicians and the legislators didn't do anything about this for 100 years. And finally, the people of Florida got together and through their own initiative collected signatures, went to the polls, and over 65% of them approved what we refer to as Amendment 4, which would restore rights at the end of somebody's sentence, including parole and probation."

NB: The law passed by the Republican-led Florida Legislature has been through various courts and legal fights, and has thus far culminated in the US Court of Appeals decision along partisan lines upholding that law that was signed by Gov. Ron DeSantis. So can you explain the verdict and how we sort of got to this point?

JE: "Yep, so very sadly, after Florida voters got together to try to bring their fellow citizens back into the electorate, the legislative session a couple months later passed a law that created what we call and what the trial court judge called a 'pay-to-vote system.' What the law said was that people would not be considered to have completed their sentence in order to get their rights restored until they paid all of their legal financial obligations related to their conviction. Florida funds its state courts almost entirely through collections of fines and fees from people with a with a felony conviction. So everybody who's convicted of any felony owes the state at least six or $800, and oftentimes thousands, or for one of our clients for a first time drug offense $50,000 in LFOs. So Florida, knowing that a lot of people with a prior conviction are indigent, decided that unless you can afford to pay your legal financial obligations, your LFOs, you would remain disenfranchised.

"And what did this do? It basically kept people disenfranchised permanently, the exact system that the voters of Florida had this just rejected. We filed a lawsuit the day that law went into effect, and we've been in litigation on the case ever since. We won a preliminary injunction back in October of last year, and the Court of Appeals agreed with the trial court and approved that injunction. In February of this year, we went to trial, just at the beginning of the pandemic by video, that was interesting. And we were successful. And the trial court, we showed evidence that making people pay to vote violates the 24th Amendment's prohibition on poll taxes, the 14th Amendment because it's wealth discrimination in voting and the due process clause of the 14th Amendment, because Florida can't even tell people how much they owe and how much they have to pay to vote. Unfortunately, we then went in front of the Court of Appeals in mid-August and got a decision back just a couple of weeks ago overturning what every other court that has looked at this in the last year-and-a-half has said. So the 11th Circuit Court of Appeals now decided that Florida's law is constitutionally valid and will stay in effect for the upcoming election. So it's a very disappointing decision from the Court of Appeals just recently."

NB: What are the next steps?

JE: "As far as litigation goes, we're still considering our options. There's a lot of things in flux. The composition of the [U.S.] Supreme Court obviously just changed this past Friday, very sadly. So we're still considering how to move forward with litigation. What we're focused on now is trying to get everybody who is presently today eligible, registered and able to vote in the upcoming election—that takes two forms. First is despite the fact that there's about three quarters of a million people who have outstanding LFOs, that leaves a quarter million people or more with a prior conviction who don't have outstanding LFOs. So we're trying to make sure that they know who they are, they know they can vote, and they get registered and make a plan to cast a ballot. There's also other organizations, specifically, the Florida Rights Restoration Coalition, which is collecting donations from all over the country. It's really been a great response, despite the bad court decision on how many people want to help returning citizens get their rights back. People are making donations and folks in Florida are applying to have their LFOs paid by this organization so that they can vote. Those those two groups, we're hoping can become eligible and get registered before the Oct. 5 deadline. As far as litigation, we don't expect that the current situation is going to change, certainly not before the registration deadline in a couple of weeks. So while we consider our options there, we're just trying to do everything we can practically to make sure that as many returning citizens as possible can participate in the upcoming election."

NB: You mentioned it earlier, the payments obviously can be exorbitant. There's and there's also the problem of people not even knowing how much they actually owe this, the courts. So can you talk about that process? And sort of, you know, what happened there? How is that even possible?

JE: "Yeah, how is that even possible is right. I mean, it was really a shocking decision—there were many things about the decision that was shocking. But that particular aspect that Florida's position has been we can disenfranchise you for your outstanding debts, but we're not obligated to tell you how much you have to pay in order to get your rights back. And when you think about that, it's just totally inconsistent with legal principles of due process: Here's what you're required by law to do, but we can't tell you the details of what that is, so you have to guess. And obviously a lot of people are dissuaded from participation, even if they think that they have all their debts paid, but they're not sure, because they are now dedicated to staying on the right side of the law and don't want to take the chance. That was really a surprising aspect of the decision and truly unfortunate. We're trying to assist people, FRRC is trying to assist people. People in Florida can call their local county supervisors of elections, or the court in which they were convicted. We're doing everything we can through our organizational plaintiffs, the NAACP, and The League of Women Voters to try to help people figure out what it is they owe and how much they have to pay to get their rights restored. But it's understandable that people would feel like 'Alice in Wonderland' here, told they can't vote but not being told by the state what they have to do to be able to vote."

NB: What are other forms of recourse?

JE: "So prior to Amendment 4's passage in 2018, the only route to restoration was through clemency and the Clemency Board, which means that people had to apply for clemency and the governor and the Board of Executive Clemency in Florida had complete discretion on when to grant and when to deny people's applications to get their rights restored. It is a slow moving, if at all, system that oftentimes results in denials. It's totally inadequate to serve the constitutional principles that we put forward in the case. That said, it may be an option for some people. So it's another route for people to try to get their rights restored. But under [Florida] Gov. DeSantis, you know, I don't have the exact number, but I believe it's under 100 people have had their rights restored that way. It's just not either a accessible means to get one's rights restored in practice, nor is it the means that the voters of Florida approved when they approved Amendment 4. So clemency may be a possibility. It is a frustrating possibility for a lot of people. But that's another area where people could attempt to get their rights restored like that. I would just point out that it's a slow process. And so for folks looking to participate in the November election, it may not be realistic."

NB: What concerns do you have going into the November election?

JE: "Well, felony disenfranchisement is constantly one of the slow burn concerns in the country. I think it's something that really perverts our democratic process to exclude over 6 million people from participating because of a past conviction. That's always on our mind when we talk about voting rights and democracy. But of course, more recently, with a pandemic, there's a lot of new challenges to voting that people don't feel safe going to the polls, that people want access to vote by mail but there are states that try to restrict it. We have brought a number of lawsuits to try to expand access to vote by mail, and a number of lawsuits in the past couple months to do away with some of the requirements that pose danger during the pandemic. For example, some states and their vote by mail requirements want a witness or a notary to watch somebody sign their vote by mail ballot envelope. For someone who's remaining isolated due to health concerns and the pandemic, they can't necessarily connect with a notary or with two witnesses to be able to get that approval of their ballot. So we're trying to address some of the barriers, in general, to people being able to vote and have their vote counted.

"And then we're trying to address some of the new barriers that are troublesome during the pandemic. The best thing that anybody can do now as far as making sure that they are able to vote is to check their registration now, today, I did it last week, and to make a plan for how they're going to cast their ballots. So the same as you would schedule anything else that you have to get done in the next month to put on their calendar to decide, am I going to vote in person and when? Am I going to vote by mail and have I taken all the steps I need to do that? But confirm your registration, make a voting plan and encourage others who are eligible to do the same is the best thing people can do to protect themselves right now."

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