AN UNCONSTITUTIONAL POLL TAX? PRELIMINARY INJUNCTION PROVIDES INSIGHT ON FLORIDA STATUTE SB7066.

By: Seiko Shastri, Vol. 104 Staff Member

An estimated 6 million United States citizens do not have the right to vote because of a prior criminal conviction.[1] One-quarter of those disenfranchised individuals––1.5 million Americans––live in the state of Florida.[2] This disenfranchisement has disproportionately affected black residents, preventing nearly 20 percent of black adults of voting age from exercising the right to vote.[3] In November 2018, nearly 65% of Florida voters approved Amendment 4 of the Florida Constitution to enfranchise former felons.[4] The amendment went into effect on January 8, 2019. However, a state statute signed into law in June 2019 significantly restricts this restoration of voting rights.[5] This state statute, known as SB7066,[6] purports to implement and clarify Amendment 4, but has been criticized as functioning as an unconstitutional modern-day poll tax.[7] Critics argue that SB7066 denies certain individuals the right to register and vote because they are unable to pay financial obligations that go beyond the time of their criminal sentence.[8] Proponents of SB7066, on the other hand, argue that SB7066 merely clarifies ambiguous language in Amendment 4 by specifying that the restoration of voting rights after “all terms” of their sentence are completed includes financial obligations. This month, a federal court issued a preliminary injunction temporarily blocking the law, providing voting rights advocates a partial win.[9]

I.  Former Felon Voting Rights in Florida Prior to Amendment 4

Prior to Amendment 4, Florida’s Constitutions imposed a lifetime ban preventing individuals with a felony conviction from voting unless they were able to get their rights restored by the governor and his cabinet.[10] This disenfranchisement provision was originally enacted after the Civil War as a tool to suppress votes of newly freed slaves, and later reenacted in 1968 despite its disparate effect on communities of color.[11] In 2000, a class action lawsuit challenged Florida’s felony disenfranchisement law as “arbitrarily and irrationally deny[ing] the right to vote because of race” in violation of the Fourteenth and Fifteenth Amendments. However, the Eleventh Circuit Court of Appeals sitting en banc eventually concluded that the provision was constitutional.[12]

Because legal challenges to Florida’s felony disenfranchisement law were unsuccessful, individuals with felony convictions who sought the restoration of their right to register and vote largely depended on how each governor decided to engage with the clemency power granted them under the Florida Constitution.[13] In 2007, Gov. Charlie Crist streamlined the process for restoring the civil rights of many individuals convicted of nonviolent crimes.[14] For example, individuals convicted of nonviolent crimes automatically had their voting rights restored after they finished serving their sentence.[15] However in 2011, Gov. Rick Scott issued new rules that were much more restrictive, instituting mandatory waiting periods of at least five years after the completion of sentences before individuals became eligibility to apply for the restoration of their right to vote.[16] The varied impacts of the governor-implemented rules are stark. In the first year of Gov. Crist’s rules 24,537 people had their rights restored; in 2011, under Gov. Scott, only 52 applications were approved––a 99.8 percent decrease from 2009.[17]

II.  Amendment 4 and the Hurdles Set by SB7066

Under the Florida Constitution, a proposed amendment must receive 60 percent or more of votes in a statewide election to be approved.[18] The nearly 65 percent of Florida voters that approved Amendment 4 voted to add a provision automatically restoring the voting rights of some felons, except those convicted of murder or a felony sexual offense,[19] “upon completion of all terms of sentence including parole or probation.”[20]

SB7006 consists of a number of provisions, however there are two that have received particular attention in recent litigation. First, the statute explicitly states that the phrase “all terms of sentence” in Amendment 4 includes financial obligations imposed as part of the sentence for a felony conviction.[21] Second, SB7066 explicitly includes financial obligations a court has converted into a civil lien—a longstanding practice by Florida courts often used for criminal defendants who cannot pay[22]—in this definition.[23] The broader context of how this statute would function is concerning. Florida has long relied on various fees imposed on defendants to fund its criminal justice system.[24] These obligations can pose substantial challenges to those released from incarceration. Studies have found that the income of people right after incarceration is very low, with a median annual income of $6,500 or about half the federal poverty line for individuals living alone.[25] Significantly, these financial conditions tend to curtail the rights of people of color more deeply and prevent them from voting.[26] One of the biggest problems in implementing SB7066 is the fact that Florida has “no consolidated system for determining what felons owe or certifying that they have paid up,” making it extremely challenging for former felons to prove they are eligible to vote.[27] An estimated 436,000 individuals who have committed a felony have outstanding fees they would have to settle before voting.[28] With deadlines for registering to vote in time for the 2020 election fast approaching, SB7066 has the potential to have a significant impact on national election results.

III. A Federal Court Reacts to SB7066

On October 18th, a federal judge issued an order granting a preliminary injunction in a consolidated action involving 17 individuals and three civil rights organizations.[29] The plaintiffs had asserted that “conditioning the restoration of a felon’s right to vote on the payment of financial obligations violates the United States Constitution, both generally and . . . when the felon is unable to pay,” while Florida state officials named as defendants in the case responded by moving for the case to be dismissed.[30] In his ruling, Judge Hinkle asserted that “Florida cannot deny restoration of a felon’s right to vote solely because the felon does not have the financial resources necessary to pay restitution,”[31] and noted that the “plaintiffs have a constitutional right to vote so long asthe state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.”[32] Judge Hinkle’s order left open the question of whether the Florida fees are poll taxes.[33] While the preliminary injunction only applies to the 17 plaintiffs and allows them to seek to regain their right to vote by proving to the state that they cannot afford to pay their legal debts, voting rights advocates praised the limited ruling as an important step in the legal battle over SB7066.[34]

Those closely following courts’ reactions to SB7066 will now wait to see what the Florida Supreme Court says. The Florida Supreme Court is scheduled to hear oral arguments in November 2019.[35] What it ultimately decides will have a reverberating impact not only on those directly impacted by SB7066, but on political processes throughout the country.

[1]Erika L. Wood, Brennan Center for Justice,Florida: An Outlier in Denying Voting Rights 3 (2016) https://www .brennancenter.org/sites/default/files/publications/Florida_Voting_Rights_Outlier.pdf.

[2]Patricia Mazzei, Florida Limits Ex-Felon Voting, Prompting a Lawsuit and Cries of “Poll Tax”, N.Y. Times, June 28, 2019, https://www.nytimes.com/2019/06/28/us/florida-felons-voting-rights.html.

[3]Christopher Uggen, Sarah Shannon & Ryan Larson, The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, 16 (2016) https://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-Lost-Voters.pdf.

[4]Mazzei, supra note 2.

[5]Id.

[6]Fla. Stat. § 98.0751 (2019).

[7]ACLU of Florida, Fighting Against a Modern-Day Poll Tax in Florida, (Oct. 4, 2019), https://www.aclufl.org/en/news/fighting-against-modern-day-poll-tax-florida.

[8]Id.; Mazzei, supra note 2.

[9]P.R. Lockhart, A Controversial Florida Law Stops Some Former Felons from Voting. A Judge Just Blocked Part of It., Vox (Oct. 19, 2019), https://www.vox.com/policy-and-politics/2019/7/2/20677955/amendment-4-florida-felon-voting-rights-injunction-lawsuits-fines-fees.

[10]Brennan Center for Justice, History of Florida’s Felony Disenfranchisement Provision 1 (2006) https://www.brennancenter.org/sites/default/files/legacy/d/download_file_38222.pdf.

[11]Id.

[12]Johnson v. Bush, 214 F. Supp. 2d 1333, 1335 (S.D. Fla. 2002), aff’d in part, rev’d in part and remanded sub nom. Johnson v. Governor of State of Fla., 353 F.3d 1287 (11th Cir. 2003), reh’g en banc granted, opinion vacated sub nom. Johnson v. Governor of Fla., 377 F.3d 1163 (11th Cir. 2004), and aff’d sub nom. Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005).

[13]Wood, supra note 1, at 9.

[14]Id. at 10.

[15]Matthew S. Schwartz, Old Florida Clemency System Was Unconstitutional, Racially Biased, NPR (Jan. 8, 2019), https://www.npr.org/2019/01/08/683141728/old-florida-clemency-system-was-unconstitutional-racially-biased.

[16]Wood, supra note 1, at 11–12.

[17]Fla. Parole Commission, Status Update: Restoration of Civil Rights’ (RCR) Cases Granted 2009 and 2010 9 (2011) https://www.fcor.state.fl.us/docs/reports/2009-2010ClemencyReport.pdf; Fla. Parole Commission, Restoration of Civil Rights’ Recidivism Report for 2011 and 2012 5 (2013) https://www.fcor.state.fl.us/docs/reports/2011-2012ClemencyReport.pdf.

[18]Fla. Const. art XI, § 5(e).

[19]Fla. Const. art. VI, § 4(b).

[20]Fla. Const. art. VI, § 4(a).

[21]Fla. Stat. § 98.0751(2)(a).

[22]Jones v. DeSantis, No. 4:19cv300-RH/MJF, 2019 WL 5295192, at *7 (N.D. Fla. Oct. 18, 2019).

[23]Fla. Stat. § 938.30(6)–(9);

[24]See Rebekah Diller, Brennan Center for Justice, The Hidden Costs of Florida’s Criminal Justice Fees (2010) https://www.brennancenter.org/sites/default/files/legacy/Justice/FloridaF&F.pdf.

[25]Bruce Western, Strong Safety Net Is Crucial to Americans in Life After Prison, The Hill, July 3, 2018, https://thehill.com/opinion/criminal-justice/395405-strong-safety-net-is-crucial-to-americans-in-life-after-prison.

[26]See Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev.  55 (2019) https://wp0.vanderbilt.edu/lawreview-old/wp-content/uploads/sites/89/2019/02/Wealth-Based-Penal-Disenfranchisement.pdf.

[27]Linda So, Restoring Felon Voting Rights a “Mess” in Battleground Florida, Reuters, Oct. 7, 2019,https://www.reuters.com/article/us-usa-election-florida-felons-insight/restoring-felon-voting-rights-a-mess-in-battleground-florida-idUSKBN1WM0YV.

[28]Id.

[29]Jones v. DeSantis, No. 4:19cv300-RH/MJF, 2019 WL 5295192, at *1 (N.D. Fla. Oct. 18, 2019).

[30]Id. at *3.

[31]Id. at *30.

[32]Id. at *51.

[33]Id. at *43.

[34]Lockhart, supra note 9.

[35]Fla. Sup. Ct., Case Summaries & Schedules November 2019 Summaries, https://www.floridasupremecourt.org/News-Media/Case-Summaries-Schedule/November-2019-Summaries(last visited Oct. 30, 2019).