11th Circuit declines to rehear decision upholding felony voting rights

Yesterday, the full U.S. Court of Appeals for the Eleventh Circuit denied Florida’s petition to rehear en banc a decision from a three-judge panel, which held on Feb. 19 that Florida may not deny the vote to people with felony convictions who have otherwise served their sentences, but may have outstanding court debt that they are unable to pay.

The panel decision concerns Florida’s 2018 ballot initiative Amendment 4, which restored the vote to state residents with felony convictions who have completed the terms of their sentence (murder and sex offense convictions are excluded).  The Florida Supreme Court held earlier this year that this required payment of fines, fees, and restitution.  The Eleventh Circuit panel, affirming a district court preliminary injunction, not only held that Florida may not deny the vote to those who can demonstrate that they are genuinely unable to pay outstanding court debt, but it also called into question the very requirement that legal financial obligations must be satisfied in order to regain the vote.  Our full discussion of that decision is included below.

Absent intervention by the Supreme Court, Florida will be now be required to 1) implement the lower court’s preliminary injunction (which affected only the 17 plaintiffs named in the lawsuit); and 2) return to the district court for further litigation to address the rights of all other similarly situated Floridians, in accordance with the seeming broader directive of the appeals court.

Yesterday’s decision sends a strong signal to the states that currently impose similar financial barriers to restoring the franchise to those who have otherwise served their sentences.  But it also suggests that states should reconsider the many other troublesome barriers that governments impose on people who have otherwise served their sentences and are looking to fully participate in society, but still carry outstanding court debt.  In this vein, we have recently written about the denial of small business loans and ineligibility for expungement of non-conviction records because of outstanding fines and fees.

11th Circuit upholds voting rights for Floridians unable to pay fines and fees

A decision yesterday from the U.S. Court of Appeals for the Eleventh Circuit is a major victory for voting rights and criminal justice reform advocates.  It has the potential to dramatically expand access to the ballot for people with felony convictions in Florida.  The decision concerns Florida’s 2018 ballot initiative Amendment 4, which restored the vote to state residents who have completed the terms of their sentence, which includes fines, fees, and restitution imposed by the court.  The appeals court’s decision held that Florida may not deny the vote to individuals who can demonstrate that they are genuinely unable to pay outstanding court debt.  The decision also called into question the very requirement that financial penalties must be satisfied in order to regain the vote under Amendment 4, and potentially similar requirements in several other states.

Amendment 4 restored the right to vote in Florida to people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.”  A major question emerged soon after its passage as to whether people who had completed their time in custody and supervision, but who still owed court-imposed financial obligations, would be eligible to vote.  In 2019, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees, and restitution (SB 7066).  See Fla. Stat. § 98.0751.  The Florida Supreme Court recently agreed in an advisory opinion sought by the governor that the ballot initiative’s reference to “completion of all terms of sentence” includes all “legal financial obligations” (“LFOs”) imposed in conjunction with a sentence.

Also in 2019, a number of individuals and organizations brought lawsuits in federal court seeking to strike down these financial barriers and/or to provide relief for those unable to identify or satisfy court debt.  In October, the federal district judge overseeing the lawsuits issued an preliminary injunction, holding that Florida cannot deny the 17 named plaintiffs their right to vote “so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.”  The court placed the burden of proof on each of the plaintiffs to demonstrate their inability to pay their LFOs, even while it recognized that this might prove difficult given the disorganized state of many criminal records.  In this regard, it noted that “Florida’s records of the financial obligations are decentralized, often accessible only with great difficulty, sometimes inconsistent, and sometimes missing altogether.”  The district court deferred addressing this and other process issues until after trial, giving the legislature an opportunity to address the process for determining inability to pay on its own.  The state appealed.

A three-judge panel of the Eleventh Circuit issued a unanimous 78-page decision affirming the lower court decision.  The panel agreed with the district judge that—as applied to 17 plaintiffs who cannot afford to pay their court debts—withholding the vote until all legal financial obligations are paid is unconstitutional discrimination on the basis of wealth.  Whereas individuals who can afford to pay their court debts are automatically restored the vote, indigent individuals are denied this right.  In reaching this conclusion, the appeals court applied a heightened form of constitutional scrutiny, along the lines recommended by UCLA professor Beth Colgan.  That decision is a major victory for the plaintiffs, but the appeals court did not stop there.

The appeals court also provided a roadmap for the district court to strike down the obligation to pay LFOs in its entirety, directing further fact-finding on the issue of its validity.  The court opined that if most people with felony convictions owe court debt that they are unable to pay, it may be unconstitutional to require anyone to satisfy court debt as a condition of regaining the vote: “[I]f the [legal financial obligation requirement] is irrational as applied to those felons genuinely unable to pay, and those felons are in fact the mine-run of felons affected by this legislation, then the requirement may be irrational as applied to the class as a whole.”

While the court could not definitively reach that conclusion as to the Florida law at this pretrial stage of the proceedings, it observed that certain evidence already in the record “casts a shadow on the State’s theory that the impecunious plaintiffs are the exception rather than the rule.”  That evidence includes: (1) expert testimony that 80.5% of more than 500,000 people with felony convictions (a large sample from 58 of the 67 Florida counties) had outstanding court debt; (2) a state report finding that Florida criminal court debt is collected at a rate of 20.55%; and (3) statements by the legislature that most criminal defendants are indigent.  Based on the evidence, the court deemed it plausible that after further fact-finding it may be appropriate to strike the entire LFO obligation requirement from Amendment 4.  Such a move would immediately restore the vote to hundreds of thousands of Floridians who have completed their custody and supervision time, but still may owe court debt.  It could also have major ramifications in states that impose similar financial barriers to the ballot box (described in footnote 5 of the appeal’s court’s decision).

David Schlussel

David Schlussel is the Deputy Director of CCRC, joining CCRC as a fellow in 2018. Before that, he served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California. He is a 2017 graduate of Berkeley Law, with an undergraduate degree from Yale. While attending law school, David represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. He also interned at public defender offices, taught outreach courses in Juvenile Hall, and wrote a law review note on marijuana, race, and collateral consequences. David has been interested in inequities in the criminal justice system since college, when he volunteered as a GED tutor at the New Haven jail.

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