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Federal judge slams Florida Republican's 'poll tax' on felon voting restoration

By Dara Kam

A federal judge appeared highly critical Monday of aspects of a new law aimed at carrying out a constitutional amendment that restored voting rights to felons, questioning whether one portion of the law was designed to discourage people from registering to vote.

The law implemented a November constitutional amendment that granted voting-rights restoration to felons “who have completed all terms of their sentence, including parole or probation,” excluding people “convicted of murder or a felony sexual offense.” 

Voting rights advocates and civil rights groups filed a federal lawsuit shortly after Gov. Ron DeSantis signed the law (SB 7066), which requires felons to pay “legal financial obligations,” such as restitution, fines and fees, to be eligible to have voting rights restored.

The plaintiffs allege that linking finances and voting rights amounts to an unconstitutional “poll tax.” They also contend that the state is unable to uniformly or consistently apply the law, in part due to record-keeping problems and because DeSantis’ administration has provided “no guidance” on how to carry it out.

The state expects plaintiffs “to do … what the state cannot,” in ascertaining the financial obligations, Julie Ebenstein, an attorney for the American Civil Liberties Union Foundation of Florida, told U.S. District Judge Robert Hinkle during a hearing Monday.

Plaintiffs are asking Hinkle to block the portion of the law requiring payment of legal financial obligations.

The law will have “an immediate and irreparable effect on individuals who simply lack the resources” to procure court documents, if the records even exist, Ebenstein argued.

But Nicholas Primrose, a lawyer representing DeSantis, told Hinkle the new law does not violate the U.S. Constitution.

“Plaintiffs are attempting to make this case about criminal justice reform,” Primrose argued, adding that “this case is not the place” for that debate.

The new law and what appeared as Amendment 4 on the November ballot put felons “in a substantially better position than one year ago,” Primrose said.

Dan Smith, a University of Florida political-science professor, testified about a “big data” analysis in which Smith examined records from the Department of Corrections and county clerks of court. Smith discovered that, of more than 500,000 felons who had completed their time behind bars or on probation or parole, more than 80 percent owed between $500 and $5,000 in some sort of legal financial obligation.

Smith said he discovered a racial disparity in which blacks were more likely to owe outstanding fees, fines or restitution by about eight percentage points over whites.

Smith also spoke of the difficulty in gathering the data. For example, county clerks --- who keep track of court fees and fines --- do not maintain records about restitution. That’s something corrections officials monitor.

Hinkle noted that, as a judge, he’s had problems with state court sentencing documents.

“It’s often very difficult to figure out what somebody was convicted of and what the terms of the sentence were,” the judge said.

Smith called the endeavor “the most difficult effort I’ve undertaken in almost 30 years as a political scientist.”

Felons who testified Monday backed up Smith’s experience. Their lawyers displayed pages of court documents that showed conflicting amounts of fees, fines and costs, when the records could be found.

Rosemary McCoy owes more than $6,000 in restitution, which she said was converted to a civil lien at the time she was sentenced. McCoy said she can’t pay the restitution because, as a convicted felon, she’s had a hard time getting regular employment.

McCoy, who is black, choked back tears when her lawyers asked her about the importance of voting, saying hers was one of the first black families to integrate an all-white neighborhood in Duval County.

“When they moved in, the white folks started moving out. Services stopped,” McCoy said.

McCoy said she registered to vote and cast a ballot in a municipal election, prior to the new law going into effect July 1.

“I voted. … The world didn’t come to an end. People went to work the next day,” she said, appealing directly to Hinkle.  “I’m asking your honor --- please.”

George Meros, a lawyer representing Florida Secretary of State Laurel Lee, asked McCoy whether her ballot was counted after she voted in May. McCoy said she believed it was, prompting Hinkle to question the state’s lawyer.

“The secretary of state asserts that it’s OK for her to vote, even though she has unpaid restitution of $6,000 and is a convicted felon?” the judge asked.

“Yes,” Meros replied.

But Meros later reversed himself, saying that felons with outstanding legal obligations would not be prosecuted if they had “an honest and credible belief” that they were eligible to vote.

That position drew a rebuke from Hinkle.

“The secretary of state thinks ignorance of the law is an excuse?” Hinkle asked, pressing Meros to explain how the state would “bind” state attorneys to adhere to that philosophy.

“I’ve got to tell you the assertion doesn’t ring true at all,” the judge said, adding that law enforcement ordinarily “does not need evidence of what’s going on in the mind” of an individual to make an arrest.

Hinkle also scolded the plaintiffs’ lawyers following McCoy’s testimony, which sounded at times like a stump speech in favor of allowing felons to vote.

“Most of that testimony was inadmissible,” the judge chided. “If you can’t win the case on the merits, you can’t win the case. … If you think you can persuade me that even though the law’s not on your side I’m going to rule for you, you got the wrong guy.”

But the judge’s harshest observations about the law came during a discussion about guidelines for a new voter registration form.

Under the old law, voters had to check a statement saying, “I affirm that I am not a convicted felon, or if I am, my rights related to voting have been restored.”

But the law passed this spring revised what is known as the “uniform statewide voter registration application,” to include three “affirmation” statements:  “(a) “I affirm I have never been convicted of a felony,” (b) “If I have been convicted of a felony, I affirm that my voting rights have been restored by the Board of Executive Clemency,” or (c) “If I have been convicted of a felony, I affirm my voting rights have been restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of my sentence, including parole or probation.”

Hinkle asked Leon County Supervisor of Elections Mark Earley about the new voter registration form, which Earley said he is not using.

“That new form doesn’t work for some people who are eligible” to vote, the judge said, prompting Earley to acknowledge the questions are “confusing.”

“Not just confusing,” Hinkle said, pointing out that people who were convicted of felonies and had their rights restored in other states would be unable to answer “yes” to any of the affirmations, even though they would be eligible to vote.

Hinkle asked Earley how many people know what “s-period-four, art-six of the state Constitution” means.

“Essentially none,” the elections official said.

“How many people in this room do you think knew that before they got hired to handle this case?” a sarcastic Hinkle asked.

Hinkle, who will hear closing arguments in the case at 8 a.m., asked Earley if the wording of the new form was designed to encourage people to register to vote.

“If you wanted people to apply, this is not the language,” Earley said.

Hinkle noted that the new form “embarrasses everyone” who registers to vote, then posed another rhetorical question.

“If you’re trying to discourage people to register to vote, would you choose language like this?” he asked.

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