Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.

Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.

As to the equal protection claim of persons who are "genuinely unable to pay their LFOs,"  Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:

The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.

The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.

On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.

On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.

On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).

While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.

The judge's remedy section at the end of the lengthy opinion is worth considering in full:

XIX. Remedy

The remedy for a constitutional violation is committed to the court’s sound discretion. The remedy should be clear, as easily administered as feasible, and no more intrusive than necessary on a defendant’s lawful prerogatives.

1. [Cases consolidated]

2. It is declared that the Florida pay-to-vote system is unconstitutional in part:

(a) The system is unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount.
(b) The requirement to pay, as a condition of voting, amounts that are unknown and cannot be determined with diligence is unconstitutional.
(c) The requirement to pay fees and costs as a condition of voting is unconstitutional because they are, in substance, taxes.
(d) The requirement to pay a determinable amount of fines and restitution as a condition of voting is not unconstitutional as applied to those who are able to pay.

3. The defendants must not take any step to enforce any requirement declared unconstitutional in paragraph 2 above.

4. The Secretary must make available in hard copy and online a form for requesting an advisory opinion from the Division of Elections substantially in the form of Attachment 1 to this order, subject to formatting and nonsubstantive modifications including, for example, addition of an address to which the request should be sent. This order refers to this as “the required form.”

5. Each defendant Supervisor of Elections must make available at each office and must post online a notice of the right to request such an advisory opinion from the Division of Elections. The Supervisor must make the required form available in hard copy and online, either directly or by link to a state website.

6. If (a) within 21 days after receipt of a request for an advisory opinion using the required form that includes a request for a statement of the amount of any fine or restitution that must be paid to make the requesting person eligible to vote, (b) the Division of Elections does not provide an advisory opinion that includes the requested statement of the amount that must be paid together with an explanation of how the amount was calculated, then (c) the defendants must not take any step to prevent, obstruct, or deter the requesting person from registering to vote and voting, (d) except on grounds unrelated to unpaid financial obligations, (e) unless and until the Division of Elections provides an advisory opinion that includes the requested statement of the amount that must be paid together with an explanation of how the amount was calculated.

7. If (a) within 21 days after receipt of a request for an advisory opinion using the required form that asserts inability to pay, (b) the Division of Elections does not provide an advisory opinion that asserts the requesting person is able to pay and provides a factual basis for the assertion, then (c) the defendants must not take any step to prevent, obstruct, or deter the requesting person from registering to vote and voting, (d) except on grounds unrelated to unpaid financial obligations.

8. If (a) within 21 days after receipt of a request for an advisory opinion using the required form, (b) the Division of Elections does not provide an advisory opinion showing the person is ineligible to vote, then (c) the defendants must not take any step to cause or assist a prosecution of the requesting person for registering to vote and voting, (d) based on anything the requesting person does before the Division of Elections provides an advisory opinion that shows the person is ineligible to vote, (e) except on grounds unrelated to financial obligations the State asserts the person must pay as a condition of voting.

9. For purposes of paragraphs 7 and 8, an assertion by the Division of Elections that a person is able to pay will have no effect—and paragraphs 6 and 7 will be applied as if the Division of Elections had made no such assertion—if (a) the requesting person had an appointed attorney or was granted indigent status in the last proceeding that resulted in a felony conviction, or (b) the person submitted with the request for an advisory opinion a financial affidavit that, if submitted in connection with a felony proceeding in a Florida circuit court, would be sufficient to establish indigent status under Florida Statutes § 27.52, or (c) all financial obligations that would otherwise disqualify the person from voting have been converted to civil liens, unless (d) the Division of Elections has credible and reliable information that the requesting person is currently able to pay the financial obligations at issue.

10. This order does not require any person to request an advisory opinion. The defendants must not take any step to prevent, obstruct, or deter a named plaintiff or member of the subclass from registering to vote or voting, except on grounds unrelated to unpaid financial obligations, if (a) the person had an appointed attorney or was granted indigent status in the last proceeding that resulted in a felony conviction, or (b) the person submits a financial affidavit that, if submitted in connection with a felony proceeding in a Florida circuit court, would be sufficient to establish indigent status under Florida Statutes § 27.52, or (c) all financial obligations that would otherwise disqualify the person from voting have been converted to civil liens, unless (d) the Division of Elections or Supervisor of Elections in the person’s home county has credible and reliable information that the requesting person is currently able to pay the financial obligations at issue.

11. The Secretary must make available in hard copy and online a statement of rules governing eligibility to vote after a felony conviction substantially in the form of Attachment 2 to this order.

12. Each defendant Supervisor of Elections must post at its offices and online a statement of rules governing eligibility to vote after a felony conviction substantially in the form of Attachment 2 to this order.

13. It is declared that financial obligations do not render these individuals ineligible to vote: Jeff Gruver, Emory Marquis Mitchell, Betty Riddle, Karen Leicht, Kristopher Wrench, Raquel L. Wright, Steven Phalen, Jermaine Miller, Clifford Tyson, Latoya A. Moreland, Curtis D. Bryant, Bonnie Raysor, Diane Sherrill, Lee Hoffman, Rosemary Osborne McCoy, and Sheila Singleton.

14. The defendants must not take any action based on financial obligations to prevent, obstruct, or deter the individuals listed in paragraph 13 from registering to vote or voting.

15. It is declared that fees and costs do not render Keith Ivey ineligible to vote.

16. The defendants must not take any action based on fees or costs to prevent, obstruct, or deter Keith Ivey from registering to vote or voting. This does not preclude action based on any unpaid fines.

17. It is declared that Florida Statutes § 97.052(2)(t) (2019) violates the National Voter Registration Act. The defendants must not use a form based on that statute.

18. The claims of the plaintiffs Kelvin Leon Jones and Luis Mendez are dismissed without prejudice. Their exclusion from the class and subclass is withdrawn, so they are now members if they meet the class and subclass definitions.

19. The declaratory and injunctive relief provided by this order runs in favor on the remaining named plaintiffs, including individuals and organizations, and the members of the certified class and subclass.

20. The declaratory and injunctive relief provided by this order and by the judgment that will be entered based on this order bind the defendants and their officers, agents, servants, employees, and attorneys—and others in active concert or participation with any of them—who receive actual notice of the injunctive relief by personal service or otherwise.

21. The court retains jurisdiction to enforce the declaratory and injunctive relief and the judgment that will be entered based on this order.

22. It is determined under Local Rule 54.1 that the plaintiffs in Nos. 4:19cv301, 4:19cv302, and 4:19cv304 are entitled to recover attorney’s fees. Under Local Rule 54.2, these plaintiffs are entitled to recover costs. Rules 54.1 and 54.2 will govern further proceedings to determine the amount of the fee and cost awards, except that the deadline for the plaintiffs’ filings under Rule 54.1(E) and for a bill of costs under Rule 54.2 is 30 days after (a) the deadline for filing a notice of appeal from the judgment on the merits, if no appeal is filed, or (b) if an appeal is filed, the date of issuance of the mandate of the United States Court of Appeals for the Eleventh Circuit affirming the judgment or dismissing the appeal. No motion to determine the fee amount and no bill of costs may be filed prior to the resolution of any appeal (or, if no notice of appeal is filed, prior to the expiration of the deadline for filing a notice of appeal).

23. The clerk must enter judgment in the consolidated case in favor of the plaintiffs in Nos. 4:19cv301, 4:19cv302, and 4:19cv304, as set out in this order, and dismissing without prejudice the claims in Nos. 4:19cv272 and 4:19cv300. The judgment must include the names of all parties and the class and subclass definitions and must explicitly retain jurisdiction to enforce the injunction and judgment.