By: James Lomonosoff

On November 6, 2018, an overwhelming majority of Florida voters voted to pass Florida Amendment 4, also known as the Voting Rights Restoration for Felons Initiative. Prior to the Amendment’s passing, some 1.5 million Floridians were barred from participating in elections on account of past felony convictions. The objective behind the Amendment, as articulated by its primary sponsor, the Florida Rights Restoration Coalition, was simple enough: “to end[] the disenfranchisement and discrimination against people with convictions.” The language of the amendment, at least as viewed by its advocates, seemed equally clear: “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.” Notably, the amendment did not restore voting rights to those convicted of homicide or felony sexual offenses.

Almost immediately following its passage, however, there arose vast differences of opinion over how to implement it – mostly, but not always, along partisan lines. Florida’s newly elected governor, Ron DeSantis (R) and its Secretary of State, Ken Detzer (R) both argued that the state government had to take additional steps to implement the amendment. At the same time, advocates for the amendment, such as Andrew Gillum (D) (who had lost the election to DeSantis) and the Florida Senate President (a Republican) considered the amendment self-executing. In the end, the Florida legislature seized the initiative and passed House/Senate Bill 7066 which attempted to spell out exactly how the amendment would be implemented.

Once again, controversy erupted. In what was perceived as an attempt by a Republican-controlled legislature to limit the votes of a demographic they imagined would skew Democratic, the new law clarified that rights would only be restored to those who had not only completed their term of imprisonment, but who had also paid all “fines or fees ordered by the court.” An earlier bill, HB7089, which mandated the payment of “any financial obligation ordered by a court as part of the sentence” failed to pass in the Senate. It is worth noting that, while the popular interpretation of “term of sentence” is essentially time in prison, the legal definition, at least in Florida, encompasses fines and probation as well. This more legalistic interpretation of the amendment’s language would, critics argued, present an unreasonable barrier to those who had already served their time. Indeed, Bruce Western, a Harvard researcher, found that the median annual income for those fresh out of prison was about $6,500, with most ex-felons owing between $500 and $5,000 in fines. According to a researcher at the University of Florida, Daniel A. Smith, more than 80% of ex-felons would be blocked by the Bill who would otherwise be restored their right to vote. Moreover, the same study found that African-American ex-felons were twice as likely to owe money post-incarceration (all the more troubling due to the Jim Crow-era origins of the felon disenfranchisement measure the Amendment was meant to remedy).

It was on the basis of these alleged facts that the ACLU and others filed a lawsuit with the U.S. District Court for the Northern District of Florida on June 28, 2019 (Gruver v. Barton, consolidated with Jones v. DeSantis) against a number of Florida elections supervisors as well as the Secretary of State. The central argument, put briefly, is that Florida lawmakers are attempting “to vitiate Amendment 4’s enfranchising impact by making restoration of voting rights contingent on a person’s wealth,” despite the clear language of the Amendment. The plaintiffs further suggest that SB7066 “creates two classes of returning citizens: those who are wealthy enough to vote and those who cannot afford to.” They further allege a racial motivation behind the Bill’s passage, in violation of the Fourteenth and Fifteenth Amendments. A brief sent in August requested an injunction against the implementation of SB7066, to which end a hearing has been scheduled for the week this piece is being written. Following the complaint, Governor DeSantis and the defendant Secretary of State filed a motion to dismiss, arguing that “Plaintiffs’ challenge to only a statute implementing the state constitution’s text cannot provide Plaintiffs any relief and thereby deprives Plaintiffs of Article III standing.” On August 15, the District Court denied the Governor’s motion. Roughly simultaneously, the Governor has requested an advisory opinion from the Florida Supreme Court regarding whether the phrase “terms of sentence” (as written in the Amendment) includes the payment of fines, fees, and other damages. Oral arguments regarding that issue will be held on November 6.

This, then, is where matters stand at the moment. We will soon hear whether or not the District Court grants the injunction against the implementation of SB2066 demanded by the ACLU and others, and we will next month get an opinion from the Florida Supreme Court regarding the definition of the Amendment’s terms. So far, at least, it seems likely that the District Court will grant the injunction. This seems to be the right course. At no point prior to the passage of the Amendment was it advocated that payment of legal fines would be a necessary prerequisite to being restored one’s franchise. Furthermore, it seems to run directly contrary to the purpose of the Amendment as stated by its advocates. Finally, SB2066 seems to run against the people themselves, a supermajority of whom having passed the measure at the ballot box.

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