Federal Lawsuit Pushes Back On Florida's Amendment 4 Roll-Out

Jun 28, 2019
Originally published on July 1, 2019 8:04 pm

A federal lawsuit has been filed against the Florida Secretary of State and ten county Supervisors of Elections across the peninsula, in what amounts to the first major legal challenge to a controversial bill that was passed by the Republican-dominated legislature to require former felons pay all fines and fees before being able to vote.

The lawsuit alleges that the bill unconstitutionally undermines sweeping new voting rights granted to people with felony convictions by Amendment 4, which passed with nearly 65 percent of the vote last November.

The suit was jointly filed by a broad conglomerate of prominent civil rights groups in the U.S. District Court for the Northern District of Florida in Gainesville. The plaintiffs include the Florida State Conference of the NAACP, the Orange County Branch of the NAACP, the League of Women Voters of Floria and ten individuals who are directly affected by the legislation. Representing them are the American Civil Liberties Union of Florida, the national branch of the ACLU, the NAACP Legal Defense and Education Fund, the Brennan Center for Justice

Some of the individual plaintiffs have already registered and voted in local elections since Amendment 4 went into effect in January. The bill will effectively  strip them of their right to vote once again, the lawsuit alleges.

Gov. DeSantis signed the bill into law on Friday. The law requires that all financial obligations -- including fines, fees and restitution -- that are associated with a felony must be paid before someone with a felony conviction regains the right to vote. Data kept by a statewide association of Clerks of Courts offices shows the vast majority of that money is never expected to be paid because the people who owe it are simply too poor. 

“I think they absolutely don’t want people to vote,” said Daniel Tilley, the legal director of ACLU of Florida, referring to the legislature. “There was never any movement by the legislature before this time to open the franchise to more people. Instead it took the 5 million voters in Florida to pass Amendment 4. It certainly was not a choice of the legislature to restore the right to vote to anyone. And if they had their druthers, they’d keep the right to vote away from all those folks, but they’re begrudgingly allowing it to some, while taking it away from the majority.”

Amendment 4 said that most people convicted of felonies in the state will have their right to vote restored “after they complete all terms of their sentence including parole or probation.” Exceptions were carved out for preventing people convicted of murder and felony sex offenses from regaining voting rights. But an underlying problem was: the state had no clear legal definition for what “all terms of a sentence” means. 

This ambiguity provided wiggle room necessary for the legislature to get involved in defining the term. The legislature decided that all “financial obligations” associated with a felony conviction have to be paid off in full before someone regains the right to vote, even if a judge has converted the money owed to a civil lien or if someone is making monthly payments towards what they owe with a court-approved payment plan.

Howard Simon was the executive director of the American Civil Liberties Union in Florida until he retired earlier this year. He helped write the amendment, and he likened the legislature’s hard line on civil liens or payment plans to saying someone who graduated college didn’t actually graduate, because they still owe money on student loans.

“Nobody in their right mind would say, ‘oh I didn’t graduate yet because I’m still paying off my student loan,'” said Simon. “So when I’m no longer under the jurisdiction of criminal courts and I have a civil lien to pay, I’ve completed my sentence, even though I’m still paying something maybe on a monthly basis.”

Critics have likened the bill to creating a “poll tax” that creates financial barriers to the right to vote. The bill has become a hotbutton issue that has divided Democrats and Republicans along partisan lines. Notably, Gov. DeSantis and Florida Attorney General Ashley Moody campaigned against Amendment 4 in the run up to the November elections, while their Democratic challengers supported the measure.

Republican architects of the legislation reject the notion that they are trying to suppress votes. Rep. James Grant played a key role in pushing the legislation forward, giving impassioned speeches before his colleagues. He pointed out that Jon Mills, one of the authors of Amendment 4, told the Florida Supreme Court that payment of all fines and fees were included in “all terms” of a criminal sentence during a hearing to get the measure on the statewide ballot. The Florida Rights Restoration Coalition, which fronted the effort to get Amendment 4 on the ballot, had similar language on its website until Rep. Grant called it out and it was removed.

“I have to deal with the consequences of what the proponents put out, what they advocated for, what they told voters the deal was, and deal with it,” said Rep. Grant in an interview with WLRN during the legislative session. “That’s what I’m going to maintain fidelity to. Whether or not I think it’s the best policy, I’m not going to undo what the voters explicitly voted for.”

“We’ll maintain our focus and our attention on doing the right thing regardless of political consequences, regardless of accusations, in a way that we can defend on substance and truth and fact in an intellectually honest process,” said Grant.

Past federal lawsuits challenging lifelong voting bans on people with felony convictions have been mounted with the organizations that are heading the lawsuit. Those suits have not been successful, but Leah Aden, the deputy director for litigation at the NAACP Legal Defense & Education Fund, said this time is different.

"Rather than challenging the whole regime of lifetime voter disenfranchisement, here we're challenging a single piece of legislation that came from a single legislative session," said Aden. "Amendment 4 abolished the lifelong ban, but this piece of legislation chips away at what the Amendment was intended to do, and that's a big difference." 

The federal lawsuit was filed against Florida Secretary of State Laurel Lee, in her official capacity. Also included are the Supervisors of Elections in Miami-Dade, Broward, Hillsborough, Duval, Leon, Orange, Alachua, Manatee, Sarasota, and Indian River counties, all in their official capacities.

"While the Supervisors of Elections might not want to participate in the rollout of this legislation, they certainly have a role in the process," explained Aden.

The amount of outstanding money owed in fines alone is staggering, but unknown in its total numbers. A WLRN analysis found that across the state, over $1 billion in fines relating to felony convictions were issued between 2013 and 2018, according to annual reports from the Florida Clerks and Comptrollers, a statewide association. Over that five year period, an average of only 19 percent of that money was paid back per year.

The total owed is cumulative, building up year after year going back as far as records are kept. The numbers are tracked by each county's Clerk of Courts office; there is no central statewide clearing house for outstanding debts.

County and circuit courts have entirely funded their own operations through money collected from fines and fees, ever since a 1998 amendment to the state constitution made this the case. One of the co-authors of Amendment 4 was a core architect of that 1998 amendment to the state constitution.

But money owed for felony convictions was never tied to the right to vote. And the money owed puts a disproportionate burden on lower-income residents.

Between 2014 and 2018, an average 83 percent of the fines levied per year by the county Clerk of Courts offices is labeled by the statewide association as having “minimal collections expectations,” meaning the counties know they are likely to never receive payment on the debt because the defendant is too poor to pay.

“It highlights the absurdity of these requirements,” said ACLU of Florida’s Tilley. “The counties know they’re not getting the money, and yet the legislature is enacting it in fact with that purpose. They know it’s not going to get paid and they want to keep people from voting. That is the explicit design of this [legislation] -- to keep those folks from voting.”

Several of the plaintiffs in the lawsuit have already been granted the right to vote since Amendment 4 went into effect. They include Betty Riddle, of Sarasota, who lost her right to vote when she was convicted of a felony as an adult when she was 17-years old. She is now 61-years-old, works full time and registered to vote for the first time ever in January.

"I celebrated like it was 1999," said Riddle of the night Amendment 4 was passed by Florida voters. Once the bill requiring her to pay all her outstanding fines, fees and outstanding civil liens passed the legislature, her tune changed. "It was like you were given this joy and then they just ripped it back from you," she said. "That was my breaking point that made me want to join a lawsuit."

Riddle said she's tried to get total figures on how much she owes for all of her felony convictions, dating back to 1975. But she's only been able to get information going back to 2001, indicating she owes about $2,000. Getting all of her information would require researching documents that are decades old, which Riddle doubts local courts are even equipped to handle. "They probably won't do it before the 2020 election," said Riddle. "There's too many people here that they're gonna have to research on. It's just crazy that they would go to that length to stop us from voting."

Plaintiff Marq Mitchell, of Fort Lauderdale, also regained the right to vote after Amendment 4 passed. Some of his outstanding costs also stem from two felony convictions he had when he was 13 and 16-years-old, when he was charged as an adult. "[The courts] sent those accounts to a collections agency and they began to accrue interest, so at this point it's well beyond what I'm able to pay," said Mitchell, who is now 29-years-old. "And at the point of conviction I wasn't old enough to even have a job. And my family was indigent. I was in foster care."

Tilley says there’s a “racial component” of the legislation, which the lawsuit addresses. An analysis released by co-plaintiff the Brennan Center for Justice in May showed that 44 percent of the formerly incarcerated people who registered to vote between January and March of this year -- the first months Amendment 4 was in effect -- were black. That’s despite the fact that black voters only make up 13 percent of the state’s voter population.

Florida was one of only three other states (Kentucky and Iowa are the others) that gave a lifetime ban on voting for people with felonies, before Amendment 4 passed. The only way someone could get back the right to vote under the previous regime was to go before a state clemency board, consisting of members of the Florida Cabinet. The number of people who got their rights restored would vary greatly, depending on who was Governor. The total amount of people getting their rights restored dropped to a 50-year low during the administration of Gov. Rick Scott. Further, during Scott’s administration the clemency board restored voting rights to the lowest percentage of black residents over that five decade period, according to a Palm Beach Post analysis.

“The system that was in place was passed right after the Civil War. Florida was one of the ten former Confederate states that voted against ratifying the 14th Amendment that would offer equal protection under the law to its citizens, Florida was the first state to enact a poll tax, then came the literacy test and other racist voter suppression tactics,” said Tilley. “This is all in the background. Amendment 4 is a huge leap forward, and the legislature is trying to pull us back, back into that deeply racist past, and we are doing everything we can to stop them from being able to do that.”

One of the core legal arguments behind the lawsuit is Section 2 of the Voting Rights Act, which prohibits laws that "deny or abridge the right of any citizen of the United States to vote on account of race or color."

Tilley said the legislature knew black people would disproportionately be impacted by the bill it passed. "It's unfortunate that they really did have all the facts before them of who was impacted and they chose to act anyway," he said.

People who owe as little as a few hundred dollars in fines and fees to over millions of dollars in restitution are included in the lawsuit. Karen Leicht, of Miami, testified before the legislature that she owed $59 million in restitution for a conviction on insurance fraud, and that if some lawmakers' plans were passed into law, she would never be able to vote in her lifetime. "I'll never vote again in this state," she told lawmakers. "That's like a poll tax." She is now a plaintiff in the lawsuit.

“Our plaintiff Jeff Gruever registered to vote and in fact voted in the Gainesville regular election in March 2019. Also, our plaintiff Keith Ivey registered to vote and in fact did vote in Jacksonville in March 2019 and in a run-off in May 2019,” said Tilley.

“Both of them have not only have registered to vote, but in fact have voted,” he said. “And they’re facing the prospect of that fundamental right being taken away now.”

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