A contentious federal civil rights trial is slated to begin Monday that will determine whether hundreds of thousands of people with felony convictions will be able to vote this fall in the swing state of Florida.
On one side of the case is Florida, along with a slew of other states supporting it from the sidelines.
On the other, hundreds of thousands of people who have completed their sentences but currently can't vote because of one thing they lack: money.
The much-anticipated class action trial comes a year and a half after Florida voters overwhelmingly approved Amendment 4 to the state's constitution, which automatically restores voting rights to most people with felony convictions after they complete "all terms of their sentence."
Soon after the vote, state lawmakers passed a bill defining "all terms" to mean that all fines, fees and restitution connected to a case would have to be paid before someone regained the right to vote.
That law triggered the lawsuit, with the plaintiffs arguing that the requirement to pay all fines and fees effectively creates a lifetime sentence for crimes they've tried to move on from.
"They know we can't pay it. And that's what really hurt me the most and made me angry, because they know we can't pay it," said Betty Riddle, one of the 17 named plaintiffs in the suit.
Florida has already lost several legal battles tied to the law.
U.S. District Judge Robert Hinkle, who will be hearing the case, issued a temporary ruling that was upheld by an appellate court that anyone who is "genuinely unable" to pay what is owed should be able to vote.
An estimated 82% of people with felony convictions have not yet paid the money they owe, according to expert witness testimony submitted in the case by University of Florida professor Daniel Smith.
The data he analyzed incorporated only 48 out of Florida's 67 counties and did not account for people who were too poor to pay. Smith said overall it was "practically impossible" to quantify how many people might not be able to vote under the new law, because of sloppy, decentralized record-keeping from the state.
The state has repeatedly admitted in court that it has no centralized way of tracking what payments are owed or even which payments have already been made. Several of the plaintiffs in the case say they have been unable to get answers on how much money they still owe.
"I don't know where you go, a one-stop shop, to get something that says you've paid all your fines and fees," Toshia Brown, the chief of voter registration services at the Florida Department of State's office, said in a deposition. "I don't know how they would be able to get that information."
"If you can't vote unless you pay back what you owe, but the state can't tell you how much you owe — then you'll never get your constitutional rights restored," said Lisa Foster of the nonprofit Fines and Fees Justice Center, which has been working to eliminate fines and fees from the criminal justice system.
Politically the case has largely split along party lines, with Democrats in favor of granting voting rights to people who still owe money, while Republicans are opposed. But the plaintiffs have gotten some support from some libertarians.
"If you boil what conservatism is down to its most basic principle, it is a government that cannot act arbitrary and capricious against its people," said Arthur Rizer, an attorney with the libertarian think tank R Street Institute, who has filed a brief backing the plaintiffs. "And besides putting you in jail, putting you in prison, the most powerful thing a government can do is strip your right to participate in the democratic process."
The state's allies say the arguments being used against the new law are misguided.
"It's not some sort of Jim Crow conspiracy" to deny the disproportionately nonwhite felons their rights, said J. Christian Adams, the president of the conservative Public Interest Legal Foundation.
"There's a whole lot of crime victims in Florida — regular people — sometimes people in the communities hardest hit by crime, that aren't ever gonna get the restitution if the plaintiffs have their way," said Adams.
Until Amendment 4 passed, Florida had barred people with felony convictions from voting for life since 1868, a few years after the Civil War. For years the only way to get rights restored was through the state's clemency board, made up of the governor, attorney general, chief financial officer and agriculture commissioner. But the number of people granted clemency varied widely depending on the administration.
A federal judge in 2018 ruled that the state's clemency process was unconstitutional, highly politicized and disproportionately stacked against African Americans.
States are watching the trial closely. Thirty states currently require someone with a felony conviction to pay fines, fees and restitution before they regain voting rights. Attorneys general in Alabama, Arizona, Arkansas, Georgia, Kentucky, Louisiana, Nebraska, South Carolina, Texas and Utah jointly submitted an amicus brief in support of Florida's case.
The states argue that they have a "substantial interest" in seeking money before someone gets the right to vote restored and that the case could set legal precedent.
"If States are limited in their ability to pursue reenfranchisement alongside their other interests, some States may well throw in the towel and prohibit any felon from regaining the right to vote," they wrote.
All of the attorneys general on the brief declined interview requests, as did the office of Florida Gov. Ron DeSantis.
Hinkle has granted class status to the 17 named plaintiffs, meaning that any decision would apply to hundreds of thousands of people in Florida who cannot pay the money they owe. The judge has hinted that if the state does not act, he might have to come up with a court-ordered solution for how to determine if someone is able to pay or not.
Hinkle has accused the state of trying to "run out the clock" of the case and has stated that he aims to resolve the issues before the November presidential election.
Because of COVID-19, the trial will largely take place via video and phone conference. Unusually for a federal trial, people across the nation will be able to listen in.
"This is the issue I worked hardest and longest on," said Howard Simon, the former director of the American Civil Liberties Union of Florida, who retired just after Amendment 4 passed in 2018. "I'll definitely be calling in."
STEVE INSKEEP, HOST:
Starting today, a federal trial considers voting rights for people who have felony convictions. Two years ago, Florida voters passed an amendment reinstating voting rights for people who complete their sentences. Then the state Legislature passed a law that said people must also pay all their fines and fees and restitution before getting back the right to vote. As Danny Rivero of our member station WLRN reports, this has now become a major civil rights case watched across the country.
DANNY RIVERO, BYLINE: Imagine two identical crimes with two identical sentences, but one defendant has money and the other one doesn't, so when it comes time to pay a fine or restitution to complete the sentence, the person with money pays up no problem. The other person can't. This dilemma is at the center of the federal case.
LISA FOSTER: We should never in a democracy be trading votes for dollars. And that is effectively what the Legislature has done.
RIVERO: Lisa Foster is a co-founder of the Fines and Fees Justice Center. It's a national group that's looking to take money out of the criminal justice system. Ahead of the November election that Florida could play a key role in, the federal case has reached class-action status. So if the plaintiffs win, the state could potentially gain hundreds of thousands of new eligible voters.
FOSTER: The judge's insistence on moving forward means the judge recognizes this is a very important case, and it's important to decide it before the November election.
RIVERO: The argument that Florida's discriminating against people based on their wealth misses the mark, says Christian Adams. He's president of the Public Interest Legal Foundation, a group that backs Florida in the case.
CHRISTIAN ADAMS: There's a whole lot of crime victims in Florida - regular people, sometimes people in the communities hardest-hit by crime - that aren't ever going to get the restitution if the plaintiffs have their way.
RIVERO: The plaintiffs argue that bringing money into the equation effectively creates a lifetime sentence for crimes they've tried to move on from. Betty Riddle is one of the plaintiffs in the case.
BETTY RIDDLE: They know we can't pay it, and that's what really hurt me the most and made me angry, because they know we can't pay it.
RIVERO: Thirty states require people with felony convictions to pay what they owe before they get back the right to vote. And that means many states have filed briefs in support of Florida's arguments, including Alabama, Arizona, Georgia and Utah. Jason Snead is the executive director for the Honest Elections Project, a group that backs Florida in the case.
JASON SNEAD: I suspect that one of the concerns that states have as they're watching this case is the fear that precedent will be set that they will not be able to properly enforce their criminal codes as they see fit.
RIVERO: Federal trials are usually not recorded or broadcast, but because of the coronavirus, the trial will be held virtually, and the public will be able to listen in.
For NPR News, I'm Danny Rivero in Miami. Transcript provided by NPR, Copyright NPR.