On Felon Voting, Judge Robert Hinkle Take Matters Into His Own Hands
U.S. District Judge Robert Hinkle gave the state months to come up with a way to carry out a constitutional amendment, approved by more than 64 percent of Florida voters in 2018, that restored voting rights to felons “who have completed all terms of their sentences, including parole and probation.”
But after the state failed to devise an adequate process, the federal judge developed his own plan.
In a rare weekend order issued Sunday, Hinkle laid out a procedure for hundreds of thousands of Floridians who have been convicted of felonies and have court-ordered debts to be able to cast ballots in the November presidential elections.
While Gov. Ron DeSantis indicated Tuesday the state will appeal the ruling, the vast majority of convicted felons in Florida would gain access to the polls by simply registering to vote, under the process crafted by Hinkle.
The judge’s decision, in part, took advantage of a process proposed by state Division of Elections officials, who said prospective voters who have outstanding “legal financial obligations” could seek an “advisory opinion” from the state to ascertain how much they owe.
At the same time they request an opinion about the amounts they owe, people could also attest that they can’t afford to pay the debts, under the process laid out by Hinkle.
But the judge’s order also established a way for most of the people who have been banned from participating in elections to register and vote, based on their status at the time they were convicted of felonies that stripped away one of the most revered democratic rights.
That part of the order addresses people who had court-appointed lawyers, were deemed indigent or whose court-ordered financial obligations were converted to civil liens when they were convicted of felonies. Under Hinkle’s order, those people are presumed to be unable to clear the debt, unless state or county elections officials “have credible and reliable information” showing they can pay.
An analysis performed by University of Florida political-science professor Daniel Smith for the plaintiffs found that more than three-quarters of the 1 million felons in Florida who have completed their time in prison or jail have outstanding financial obligations. Smith also found a “disproportionate” number of those felons are unable to pay the court-ordered costs.
Plaintiffs’ lawyers estimate that about 70 percent of defendants convicted of felonies are eligible for public defenders. Many defendants’ financial obligations, such as restitution, are converted to civil liens, when they are deemed indigent or are sentenced to prison or jail.
Hinkle’s ruling enables most Floridians with outstanding court-ordered debt to register and vote without seeking an advisory opinion from the state, American Civil Liberties Union lawyer Julie Ebenstein told The News Service of Florida on Tuesday.
“The vast majority of people with a prior conviction who have completed parole and probation and only have outstanding LFOs (legal financial obligations) will be eligible to vote without taking any additional action,” she said.
The legal fight has centered on a 2019 law passed by the Republican-controlled Legislature to carry out the constitutional amendment about restoring felons’ voting rights. The 2019 law required felons who have completed their incarceration or probation to pay court-ordered fines, fees, costs and restitution associated with their convictions to be eligible to vote.
But Hinkle’s Sunday decision found that court fees and costs are unconstitutional “taxes.”
Felons who can afford to pay restitution and fines must fulfill those financial obligations to vote, the judge decided. But those who are unable to pay restitution and fines can register and vote, the judge ordered.
DeSantis and his administration have fiercely defended the 2019 law, and the governor on Tuesday said Hinkle’s ruling was expected.
“That was obvious from the beginning. It’ll go to 11th Circuit and we’ll see how it shakes out there,” DeSantis, referring to the 11th U.S. Circuit Court of Appeals, told reporters in Miami.
DeSantis, a Harvard-educated lawyer, and GOP lawmakers insisted the law faithfully carried out what appeared as Amendment 4 on Florida’s November 2018 ballot.
In October, Hinkle ruled that it is unconstitutional to deny the right to vote to felons who are “genuinely unable to pay” court-ordered financial obligations.
A three-judge panel of the 11th U.S. Circuit Court of Appeals in February upheld Hinkle’s ruling, finding that requiring all felons to pay financial obligations violates equal protection rights guaranteed under the 14th Amendment because it “punishes those who cannot pay more harshly than those who can.”
After the appeals-court ruling, Hinkle granted class certification in the lawsuit, meaning that hundreds of thousands of convicted felons could have their voting rights restored in the case.
Hinkle’s October preliminary injunction told the state to come up with a process to determine the amounts of felons’ legal financial obligations and a way to decide whether they are able to fulfill the court-ordered debt.
Shortly before an eight-day trial began on April 27, the state revealed a plan to calculate felons’ outstanding obligations, which Hinkle dubbed the “every-dollar” approach in Sunday’s ruling.
The state’s plan would instruct Division of Elections workers to credit all payments felons have made — including fees to collections agencies or other third parties — toward the total amount assessed at the time of sentencing. If the payments equal or surpass the amount assessed at sentencing, the voter would be considered eligible, according to the new procedure.
Hinkle rejected the state’s “byzantine” process, saying it “undermines” the state’s position that felons should be required to fulfill their entire debt to society before being allowed to vote because it would allow some people to vote even if they failed to pay restitution.
DeSantis’ administration never identified a process for how the state would determine an individual’s ability to pay outstanding financial obligations.
Hinkle’s ruling remains in effect unless the Atlanta-based appeals court puts it on hold in an appeal by the state.
But for now, plaintiffs and felons’ advocates are rejoicing.
“Wow. Huge,” Karen Leicht, a Miami plaintiff who owes more than $50 million in restitution, said of Hinkle’s ruling in an interview Tuesday with the News Service.
Leicht, who pleaded guilty to conspiracy to commit insurance fraud in 2010 and whose restitution was converted to a civil lien, registered and voted in local elections.
Hinkle’s ruling alleviates the fear of prosecution for other “returning citizens” who want to vote but are unable to pay court-ordered financial obligations, Leicht said.
“I have so much hope. I feel empowered. All of us citizens who deserve to have a say in how this government runs, now have that say without fear of going to prison. It’s great,” she said.