The US Court of Appeals for the 11th Circuit in Atlanta has again played a pivotal role in the back-and-forth legal battle over a voter-approved amendment to Florida’s constitution that is at the center of the state’s effort to restore voting rights to former felons. This time, the Court ruled in favor of the State of Florida, temporarily allowing the state to resume enforcing the requirement that ex-felons pay all fines and fees related to their sentence before they can register to vote.
Amendment 4, as it is known, appeared as a ballot initiative in 2018 and was approved by 65% of voters. It returned the right to register and vote to ex-felons. Rather than respecting the will of Florida’s citizens, the state legislature passed a new law in May 2019 that restricted the restoration of voting rights until former felons had paid all court costs and fines for their crimes. The legislation affects as many as 774,000 people.
Voting rights advocates have argued that this requirement amounts to wealth discrimination, given that most ex-felons lack the financial resources to make a prompt and complete payment and some are unlikely to ever be in a position to pay what they owe.
In its ruling on July 1, the Court of Appeals rejected the order of US District Court Judge Robert Hinkle, who in May this year found that the state had failed to develop a system that enables easy access to information about former felons’ possible debts. At the time, according to the Washington Post, Hinkle said that the state had created “an administrative nightmare”. His ruling gave the Florida government 21 days to communicate to former felons the relevant information on their status. Hinkle’s ruling restored voting eligibility if the state failed to do so.
The most recent ruling from the Court of Appeals suspended Hinkle’s decision and scheduled a hearing before the appeals court for August 18, the same day that Florida will hold primary elections. It is unclear how many ex-felons have registered to vote since Amendment 4 went into effect in January, 2019 and how many of them will be allowed to cast their ballot. It is also unclear whether the issue will be decided in time for the presidential election in November.
Although some editorials have raised the specter of intentional voter suppression, most news reports have failed to do so. Yet, it is difficult to ignore that possibility in a state that kept at least 12,000 eligible voters from participating in the 2000 presidential election. In that contentious outcome, which required intervention by the Supreme Court, the vote in Florida determined the winner. According to the official vote count, only 537 votes separated the winning candidate from the runner up.
Now, as then, the Republican Party controls the Florida government. It is fair to ask, at least, why that party and the state have persistently failed to prioritize the right to vote, the most fundamental right in our democracy.
NOTE: On July 16, the Supreme Court declined to act on an emergency request to allow Hinkle’s ruling to stand. Nina Totenberg, reporting for NPR, pointed out that this was the fourth time this year that the court had declined to support a decision that protected voting rights. The other instances she cited involved cases in Wisconsin, Alabama, and Texas.
The Campaign Legal Center, which along with the ACLU and others had petitioned the court to review the case, made it clear what they thought of the court’s lack of action. Speaking for the Center, attorney Paul Smith told the Washington Post, “Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018. The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.” Smith committed the Center to continuing the fight for Florida’s voters.
The next step: the August 18 hearing before the 11th Court of Appeals.
Update December 16, 2020
In September, the 11th Court of Appeals issued a 6-4 ruling against the restitution of voting rights for former felons in Florida. The Miami Herald estimated that close to 800,000 ex-felons made ineligible to vote in last month’s election because of the court’s decision. Many of the ex-felons who did vote in the election were able to do so only after their fees and fines were paid by donations from pro athletes who made a concerted push to strengthen voting rights following several controversial killings of Black people by police.
The case is expected to be appealed to the US Supreme Court.
Lori Rozsa, “Voting rights of some felons in Florida in question after appeals court ruling”, Washington Post, Jul 9, 2020, https://www.washingtonpost.com/politics/voting-rights-of-some-felons-in-florida-in-question-after-appeals-court-ruling/2020/07/08/ad567af4-c116-11ea-9fdd-b7ac6b051dc8_story.html, accessed Jul 9, 2020
Alex Pickett, “11th Circuit Blocks Order Allowing Felon Voting in Florida”, Courthouse News Service, Jul 1, 2020, https://www.courthousenews.com/11th-circuit-blocks-order-allowing-felon-voting-in-florida/, accessed Jul 9, 2020
Florida staff, “Federal appellate court speeds up voting-rights appeal for felons in Florida”, News-Press, Jun 15, 2020, https://www.news-press.com/story/news/2020/06/15/court-speeds-up-voting-rights-appeal-felons-florida/3190526001/, accessed Jul 9, 2020
Bobby Caina Calvan, “Could 1 million felons vote in Florida in 2020? Federal trial weighing issue”, Associated Press/Tallahassee Democrat, Apr 27, 2020, https://www.tallahassee.com/story/news/2020/04/27/election-2020-florida-felon-vote-swing-state-trump-biden/3035148001/, accessed Jul 9, 2020
Public Disclosure Division, “2000 Official Presidential General Election Results”, Federal Election Commission, Dec 2001, https://transition.fec.gov/pubrec/2000presgeresults.htm, accessed Jul 9, 2020
Brooks Jackson, “The Florida Recount of 2000”, FactCheck.org, Jan 22, 2008, https://www.factcheck.org/2008/01/the-florida-recount-of-2000/, accessed Jul 9, 2020
The Editorial Board, “Republicans Tried to Suppress the Vote in Florida. And Failed”, The New York Times, May 26, 2020, https://www.nytimes.com/2020/05/26/opinion/florida-felon-voting-court.html, accessed Jul 9, 2020
Amy Gardner and Lori Rozsa, “Supreme Court deals blow to felons in Florida seeking to regain the right to vote”, Jul 16, 2020, https://www.washingtonpost.com/politics/supreme-court-deals-blow-to-felons-in-florida-seeking-to-regain-the-right-to-vote/2020/07/16/2ede827c-c5dd-11ea-a99f-3bbdffb1af38_story.html, accessed Jul 28, 2020
Nina Totenberg, “Supreme Court Deals Major Blow to Felons’ Right to Vote in Florida,” Jul 17, 2020, https://www.npr.org/2020/07/17/892105780/supreme-court-deals-major-blow-to-ex-felons-right-to-vote-in-florida, accessed Jul 28, 2020