Friday, August 16, 2019

Judge hearing case on felons’ voting rights asks: Is Amendment 4 even constitutional? (Miami Herald/NSOF)

Interesting question raised sua sponte by U.S. District Judge Robert Hinkle. Could it be that the court would interpret Amendment 4 in a way that it is still constitutional and complaint with the 24th Amendment?

Judge hearing case on felons’ voting rights asks: Is Amendment 4 even constitutional?
AUGUST 15, 2019 05:02 PM
Miami Herald/News Service of Florida

Florida excludes more former felons from voting than any other state because of its restrictive restoration of rights laws. BY

Florida’s constitutional amendment to automatically restore most felons’ voting rights could itself be unconstitutional, a federal judge suggested Thursday in a surprise twist to a lawsuit aimed at invalidating a law passed by the Republican-led state Legislature.

U.S. District Judge Robert Hinkle ordered parties in the case to address whether the law approved by voters in November as Amendment 4 could violate the U.S. Constitution if it requires that voting rights are restored only after someone with a felony record has satisfied all the financial obligations of his sentence.

“Does it mean that Amendment 4 is unconstitutional and we’re back where we were before it was passed?” Hinkle asked lawyers in a telephone conference.

Hinkle’s comments cut to the heart of the dispute that has arisen since the Florida Legislature passed SB 7066, implementing the amendment. The amendment already required felons to complete “all terms of their sentence, including parole or probation” but lawmakers added a requirement that only felons who have paid all “financial obligations” ordered by courts as part of sentencing — including fees, fines and restitution — will have their voting rights restored,

Plaintiffs who brought the lawsuit, a group of voting rights advocates, argue that the financial obligations requirement amounts to unconstitutional “poll tax” aimed at preventing black voters from participating in elections.

They estimate that about 1.4 million Floridians have been convicted of felonies but are no longer incarcerated and should have their rights automatically restored. If the financial requirements bar as imposed by the Legislature is upheld, it could render 80 percent of those with a felony record ineligible to vote, their lawyers said.

“If the plaintiffs are correct that requiring felons to satisfy the financial obligations is unconstitutional as applied to 80 percent of the otherwise eligible felons, does that mean that the financial obligation requirement should essentially be severed from Amendment 4, at least as applied to that 80 percent,” Hinkle asked lawyers. “Or does it mean that Amendment 4 is unconstitutional and we’re back where we were before it was passed?”

Hinkle acknowledged that neither the voting rights groups that brought the lawsuit, nor Gov. Ron DeSantis and Secretary of State Laurel Lee who want the lawsuit dismissed, raised the question of the constitutionality of the underlying amendment but, he said, “it seems to me to be a question that at some point has got to be addressed.”

During the telephone hearing, Hinkle said he wants both sides to address the issue by Aug. 29.

“If it should turn out that the Florida constitutional provision, Amendment 4, also provides that a plaintiff cannot vote unless the plaintiff satisfies all the financial obligations, then the question becomes, what happens if that’s unconstitutional?” the judge said.

Lawyers for the state have argued that even if the newly passed law is struck down, Florida felons would still be unable to vote because Amendment 4’s “use of the phrase ‘all terms of sentence’ would serve as a bar to relief even if the statute being challenged was found unconstitutional.”

But Hinkle said he was “not impressed” by that argument.

Plaintiffs have also argued that the law is unconstitutional because the state lacks a single centralized database where felons, referred to as “returning citizens,” can find out if they have outstanding financial obligations. Local databases maintained by county clerks have “inconsistent, incomplete and inaccurate” information, the plaintiffs’ lawyers wrote this month.

Hinkle set an Oct. 7 hearing on the plaintiffs’ request for a preliminary injunction to block the law and suggested he has observed the incomplete nature of state court records. He said he routinely sees records related to Florida convictions, which must be taken into account when sentencing defendants in federal court.

“Sometimes we get a one-page sheet that’s a little bit hard to figure out,” he said.

He said it “might very well be helpful to have a good description of what is and is not available, and how one would determine who is eligible to vote and who is not. “ He also urged the parties to provide a witness “who really knows how this stuff works,” such as a county clerk of court.

The News Service of Florida contributed to this report.\

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