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​Q&A: Florida’s voting rights lawsuit could tilt 2020 presidential election

Lina Ruiz
Fresh Take Florida
Walton Sun

A federal civil rights trial wrapping up in Tallahassee may resolve the question of whether felons in Florida who have served their prison sentences – but can’t afford to pay court fines and fees – will be allowed to vote in the upcoming election.

No one can say for sure, but the trial’s outcome could affect whether President Donald Trump wins Florida – and the White House. Trump won Florida over Hillary Clinton by fewer than 113,000 votes in 2016, and the verdict could add hundreds of thousands of new Florida voters to the election calculus.

The legal battle is between Republican Gov. Ron DeSantis and 17 plaintiffs, represented by the American Civil Liberties Union, Brennan Center for Justice and the NAACP. In a twist, it’s being conducted virtually amid the COVID-19 pandemic, with lawyers and witnesses appearing via video conference.

As part of the case, U.S. District Judge Robert L. Hinkle previously issued a preliminary injunction in October that temporarily restored the voting rights of the 17 plaintiffs. The trial’s outcome will affect the voting rights of as many as 1.4 million felons in Florida, including hundreds of thousands with unpaid court fines and fees.

Here’s what you need to know about the case:

When will a jury decide its verdict?

It won’t. There is no jury. The federal judge, Hinkle, will announce his verdict in what is known as a bench trial. It’s unclear how long the judge may take to render his decision, but deadlines are looming: Campaigns are in full swing, the deadline is July 20 for voters in Florida to register to cast ballots in the general election and the judge almost certainly will not want to wait that long.

How will the judge rule?

Like in most trials, we can’t say for sure. The judge hasn’t given many hints during last week’s testimony, except to overrule a number of objections by the governor’s lawyer. But Hinkle’s interim rulings in the matter, including the preliminary injunction, appeared to be a clear sign that he considers the plaintiff’s assertions credible that overdue court fines and fees might represent an unconstitutional poll tax, at least for felons who can’t afford to pay them.

How could this affect the 2020 presidential election?

Florida is a swing state, which means that its electoral votes are regularly up for grabs for both Democrats and Republicans. Trump, who recently declared himself a Florida resident and visits the state regularly, beat Clinton for Florida’s popular vote by a mere 1.2 percentage points in 2016. The presumptive Democratic nominee, former Vice President Joe Biden, has regularly been polling slightly ahead of Trump during April. According to the Florida Division of Elections, there are 4.83 million Republicans and 5.12 million Democrats with active voter registrations – plus 3.6 million independent voters – as of Feb. 29. Florida’s governor’s mansion and its Legislature are controlled by Republicans, who are eagerly trying to deliver Florida to Trump.

How much money can a felon owe?

It can be hundreds of dollars. So-called Legal Financial Obligations apply to all fines, fees and restitutions that are part of a criminal sentence involving costs for a public defender or jail time. Restitution acts as compensation to victims who suffered loss as a result of a perpetrator’s crime. According to a report by expert witness Dan A. Smith, chairman of the political science department at the University of Florida, almost 80% of the more than 1 million ex-felons in Florida owe at least $500 in legal fees.

What happened so far in the trial?

Opening statements from plaintiff attorneys cited the injustice of “taxation without representation” of ex-felons unable to pay their legal fees, while a representative of DeSantis stated that, “the system is not perfect, but the system gets it right most of the time.” Smith, the expert witness, showed that 77.4% of the more than 1 million Floridians with past felony convictions still owe fines or fees. Latoya A. Moreland, a 39-year-old unemployed ex-felon, told the court she owes $645 in overdue fines and fees.

What is Amendment 4? How did this start?

Appearing on Florida ballots in November 2018 during the general election, voters approved this constitutional amendment to restore voting rights to felons upon completion of sentences, excluding those convicted of murder or sexual offenses. The vote followed years of complaints that Florida’s previous Republican governor, Rick Scott, had moved too slowly during the formal clemency process to restore the civil rights of too few felons.

What is Senate Bill 7066?

Less than a year after ex-felons ostensibly regained their voting rights, DeSantis signed a Republican-introduced bill into law last summer that deemed all terms of sentencing to include full payment of fines, fees and restitutions. The law, which DeSantis’ administration said interprets the amendment’s language, states that these fees are tied to requirements of probation, parole or community control.

Have other judges or courts weighed in?

The Florida Supreme Court in January sided with Republican lawmakers and the governor and said that “all terms“ of a felon’s sentence included payment of any court fees, fines and restitution imposed during his sentence. The court’s non-binding advisory opinion does not hold weight in the case, and it did not clarify if Amendment 4 grants ex-felons unable to pay legal fees the right to vote.

If the governor loses, can he appeal to a higher court?

Yes, but that court has already ruled against him once so far in the case. DeSantis in December appealed Hinkle’s preliminary injunction, sending that part of the case to the 11th U.S. Circuit Court of Appeals in Atlanta. A three-judge panel ruled that the voting requirement to pay fines, fees and restitutions was unconstitutional, citing wealth discrimination against those unable to afford it. The appeals court later blocked the governor’s request for a broader review of the injunction.

What are the obstacles of requiring payment of fines, fees and restitutions?

There is no centralized, statewide system of court-imposed fines or fees, also known as Legal Financial Obligations (LFOs), of ex-felons. The paper trail of this varies among counties, and some ex-felons say that they weren’t informed of legal fees during their sentencing. Mark Earley, Leon County Supervisor of Elections, said his office, located in the state capital, doesn’t receive information on court fines or fees. Additionally, ex-felons can struggle with finding sources of income and housing with a criminal record, which creates another obstacle to paying legal fees.

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This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. The reporter can be reached at linamruiz@ufl.edu. ​