The monumental felony voting rights case in Florida moves another step forward, expanding in scope.  On Tuesday, the federal trial judge overseeing the case certified a class of all persons who have served sentences for felony convictions, who would be eligible to vote in Florida but for unpaid court debt.  With the trial scheduled to begin via remote communication on April 27, the decision enables the court to issue a ruling on the merits in time for the November election that would apply to the entire class of several hundred thousand (or more) potential Florida voters.

The case arises from 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 Amendment 4 required a person to pay fines, fees, and restitution before their right to vote may be restored.  In 2019, a number of individuals and organizations brought lawsuits in federal court seeking to strike down these financial barriers to regaining the vote and/or to provide relief for those unable to identify or pay court debt.

Federal court issues preliminary junction

In October, the federal judge overseeing the lawsuits in the U.S. District Court for the North District of Florida issued an preliminary injunction, holding that Florida cannot deny the 17 individual 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 legal financial obligations, even while it recognized that this might prove difficult given the disorganized state of many criminal records: “Florida’s records of the financial obligations are decentralized, often accessible only with great difficulty, sometimes inconsistent, and sometimes missing altogether.”  Nonetheless, the district court deferred addressing several 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.

Appeals court affirms preliminary injunction

In February, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued a unanimous decision affirming the preliminary injunction.  The panel agreed that—as applied to the 17 plaintiffs who cannot afford to pay—withholding the vote until all legal financial obligations are paid is unconstitutional discrimination on the basis of wealth.  That decision was a major victory for the 17 plaintiffs, but the appeals court did not stop there: it also provided a road map for the district court to strike down the financial-obligations requirement in its entirety, directing further fact-finding on the issue of its validity, stating: “[I]f the [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 appeals court could not definitively reach that conclusion at this pretrial stage, 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.”

The State of Florida petitioned the full U.S. Court of Appeals for the Eleventh Circuit to rehear the panel decision through an en banc proceeding.  On March 31, the Eleventh Circuit denied Florida’s petition.  Florida can still petition the Supreme Court for review.

District court certifies a class and sub-class before trial

Meanwhile, proceedings have continued in the district court. The judge recently scheduled the trial for April 27 and denied the defendants’ motion for summary judgement.  The parties and the court are currently working out procedures for a remote trial to be conducted by video conference or telephone.  On Tuesday, with the trial approaching, the judge issued an order certifying a class and sub-class in the case.

The April 7 order, almost certainly influenced by the appeals court decision, certifies a class of all persons who would be eligible to vote in Florida but for unpaid financial obligations, for a claim that the financial-obligation requirement imposes an unconstitutional poll tax or other tax under the 24th Amendment.  The court also certified a sub-class of all persons within the class who assert they are genuinely unable to pay their financial obligations, for a claim under the 14th Amendment.

Though some media outlets reported this order as an expansion of the preliminary injunction to cover the entire class, that does not appear to be the case.  Nonetheless, the move dramatically expands the scope of the trial and the implications of any ruling that emerges.  In explaining the necessity of certification, the judge pointed out that after the entry of a preliminary injunction in favor of 17 individuals, Florida’s Secretary of State advised Supervisors of Elections that the ruling applied only to the 17, and therefore, the “March 2020 elections went forward on that basis—without any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit.”  As a result, “[c]lass members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.”

Also notable: in rejecting Florida’s argument that Plaintiffs had not met the requirement that a class must be ascertainable, the court wrote: “here the proposed class and subclass, at least as defined in this order, are sufficiently ascertainable to meet any such requirement. The state’s records of financial obligations are a mess—that is one of the plaintiffs’ other complaints—but the Secretary should hardly be heard to complain that it is impossible to figure out who has an unpaid financial obligation.”

With the trial set for to begin in late April, an enforceable decision could come down in time for November’s election.  Such a decision would not only re-enfranchise at least several hundred thousand, if not more than a million, Florida voters.  It would send a strong signal to the states that currently impose similar financial barriers to restoring the vote to those who have otherwise served their sentences.  It would also signal that government officials should reconsider the many other troublesome barriers that they impose on people who have otherwise served their sentences and are looking to fully participate in society, but still carry outstanding court debt (i.e. denial of federally-backed small business loans and ineligibility for expungement of non-conviction records).