U.S. District Court Judge Robert Hinkle seemed skeptical of how the state was applying a new law requiring ex-felons to pay all fines, fees, restitution and other costs as part of their sentence before being allowed to vote again.
Tuesday’s hearing was held for Hinkle to consider whether to issue a preliminary injunction delaying the law while the underlying case moves forward. Even if he were to strike down the law, he could issue a stay while the injunction is appealed by the state. He did not immediately rule.
The date for the trial was set for April 6 — almost three weeks after the March 17 presidential primary.
The many bureaucratic hurdles an ex-felon faces in trying to determine how much they owe or whether they’re actually eligible to vote or not under the law, often because of conflicting or inadequate court documents, is also untenable, Hinkle said.
“What we have is an administrative nightmare,” Hinkle said.
At the same time, Hinkle seemed reluctant to set up an alternative process for determining who could afford to pay their sentencing costs and who couldn’t. He also said that could clog the courts with thousands of individual cases.
He suggested the Legislature or the Clemency Board, made up of Florida Gov. Ron DeSantis and the Cabinet, come up with a new law or new administrative rules for Amendment 4 that are constitutional.
“If somebody would try to roll up their sleeves and try to come up with a better system, they could do a whole lot better job than I can,” Hinkle said.
A new voter registration form developed by the Florida Department of State gives new voters the option of identifying themselves as a non-felon or an ex-felon who has paid all fines and fees.
The form is confusing and seemed deliberately designed to thwart potential voters, Hinkle suggested, because there is no option for those convicted of a felony in another state but who had their rights restored and moved to Florida.
Mohammad Jazil, attorney for the Florida Department of State, which oversees elections, admitted that the new form was “inartfully worded” but said the department is working on a new form that includes all affected ex-felons.
Hinkle also warned attorneys from both sides he was conflicted on how to rule and he hasn’t made up his mind. Hinkle also had his eye on another case pending before the Florida Supreme Court, and he indicated that court could likely find that fines, fees and other financial penalties imposed as part of a sentence are required by Amendment 4.
Republican lawmakers have pointed to Amendment 4 supporters’ own arguments showing they acknowledged fines and fees would be paid as part of the rights restoration process.
Blocking people from voting because they can’t afford to pay, however, runs into other constitutional issues.
Hinkle noted the 24th Amendment to the Constitution and a previous ruling from an appellate court state that the right to vote in federal elections “shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.”
The GOP-led Florida Legislature passed the law as a way of setting guidelines for handling Amendment 4, which restores the right to vote to ex-felons who have completed “all terms of sentence.” The amendment, which does not apply to those convicted of murder or sex crimes, was passed by 65% of voters last November.
Democrats and supporters of Amendment 4 have criticized the law as a “poll tax,” but Hinkle focused on the “or other tax” part of the constitution, noting that many of the fines imposed are used to fund the courts and aren’t a discretionary part of a sentence.
Since the Clemency Board and the Department of State haven’t given any new guidance for determining when an ex-felon meets the rights restoration requirements under the new law, any new tweaks aren’t likely to work, attorneys for the plaintiffs said.
“The system that’s in place is entirely broken and it isn’t something which can be saved by Band-Aids or small corrections,” said Orion Danjuma, lawyer for the American Civil Liberties Union, one of the voting rights groups that brought the lawsuit.
The Legislature will meet for a 60-day session beginning in January. That gives lawmakers the opportunity to change the law and the Department of State to change its forms before the next major election.
“Nobody is going to know for quite some time how this all shakes out,” Hinkle said.
Meanwhile, ex-felons who owe court costs, fees, fines or restitution payments are stuck wondering whether they’re able to vote.
“If everything stays the way it is now, I would still have that apprehension of not going to vote because I don’t want to break any laws,” said Clifford Tyson, an ex-felon from Hillsborough County who is a party to the lawsuit. “But if things change I would be the first one to the polls.”
According to court filings, he’s paid more than $1,800 in restitution as part of his sentence but still could owe more than $2,000 in costs and fees. The exact amount is unknown “because of discrepancies and ambiguities in county and state records” a filing from the plaintiffs states.
©2019 The Orlando Sentinel (Orlando, Fla.). Distributed by Tribune Content Agency, LLC.
