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2020

Judge intends to grant class action status to felon voting restoration lawsuit

The move would add potentially hundreds of thousands to the suit.

A federal judge has agreed to add potentially hundreds of thousands of people to a lawsuit challenging a Florida statute requiring felons to pay outstanding “legal financial obligations” to vote.

U.S. District Judge Robert Hinkle issued an order Tuesday after saying last week he intended to grant class certification to plaintiffs, who allege that the 2019 law amounts to an unconstitutional “poll tax.”

The statute, passed by Republican lawmakers and signed by Gov. Ron DeSantis, was aimed at implementing a 2018 constitutional amendment granting voting rights to felons who have completed their sentences.

The law requires felons to pay court-ordered “legal financial obligations,” including fees, fines and restitution, to be eligible to vote.

In the order Tuesday on class certification, Hinkle rejected Secretary of State Laurel Lee’s arguments that a broad expansion of plaintiffs was unnecessary.

“The plaintiffs’ Twenty-fourth Amendment and inability-to-pay claims turn on issues that can be properly resolved in a single action, once and for all. Class treatment is proper,” Hinkle wrote in the 18-page order, referring to the U.S. Constitution’s 24th Amendment barring poll taxes.

In an October preliminary injunction, Hinkle ruled that it is unconstitutional to deny the right to vote to felons who are “genuinely unable to pay” court-ordered fees, fines and restitution. The 11th U.S. Circuit Court of Appeals upheld the injunction, which applied only to the 17 named plaintiffs in the case.

In a brief opposing the request for class certification, Lee’s lawyers wrote in October that identification of felons who can’t afford to pay financial obligations “is problematic, ill defined, and requires hundreds of thousands (up to as many as one million) of determinations regarding which former felons are ‘genuinely unable to pay’ their outstanding financial obligations.”

But Hinkle’s order Tuesday rejected the argument.

The relief likely to be granted, if the plaintiffs prevail in the case, “is not a felon-by-felon determination in this court of inability to pay but instead an injunction requiring the secretary to put in place a system under which felons are not precluded from voting based only on inability to pay,” Hinkle wrote.

The state lacks a uniform or consistent method of applying the 2019 law, with some records incomplete and others having discrepancies, according to court documents. Hinkle called the process “an administrative nightmare” during an October hearing.

The federal judge on Tuesday also disagreed with Lee’s contention that it is unknown who will be affected by the court’s decision. Hinkle said “the proposed class and subclass” — felons who owe financial obligations, and felons who cannot afford to pay outstanding financial obligations — are “sufficiently ascertainable.”

“The state’s records of financial obligations are a mess — that is one of the plaintiffs’ other complaints — but the secretary should hardly be heard to complain that it is impossible to figure out who has an unpaid financial obligation,” Hinkle wrote.

Also, the court will likely not decide which members of the “inability-to-pay subclass” are those who are genuinely unable to pay, but rather “those who assert genuine inability to pay,” the judge added.

Hinkle rejected Lee’s argument that class certification was unnecessary because the state would abide by a ruling about whether the law amounts to an unconstitutional poll tax.

Class treatment “adds a layer of complexity to any litigation,” the judge acknowledged.

“Here, though, the secretary’s promise to abide by any ruling is not enough,” he wrote.

Hinkle noted that, following his October preliminary injunction, Lee’s office advised county supervisors of elections that the judge’s ruling only applied to the 17 plaintiffs in the case.

“The March 2020 elections went forward on that basis — without any statewide effort to conform to the U.S. Constitution as interpreted by both this court and the 11th Circuit,” Hinkle scolded. “Class members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.”

In reaching his decision about class certification, Hinkle pointed to an analysis by University of Florida political-science professor Daniel Smith, who found that, in the 58 counties for which he had data, more than 430,000 felons would be ineligible to vote solely because they had outstanding financial obligations.

Smith’s number “was conservative” because it did not include felons with federal or out-of-state convictions, Hinkle noted.

Hinkle also relied on a report by the Florida Court Clerks & Comptrollers showing that 22 percent of fines and fees assessed in the state were at risk of non-collection because of indigency.

The two reports “show that many thousands of felons are unable to pay their relevant financial obligations because of indigency,” Hinkle wrote Tuesday.

“Still others are unable to pay because the amount owed is out of reach even for a person who is not indigent,” he added.

Tuesday’s ruling is the latest blow to DeSantis, a Harvard Law School graduate who has fiercely defended the state law but has been thwarted repeatedly by Hinkle and the Atlanta-based appeals court.

For example, Hinkle recently chided the state for failing to come up with a process to determine whether felons have outstanding legal obligations, as he ordered the state to do in his October injunction. Hinkle told the state to come up with a plan before a two-week trial begins on April 27.

“If you don’t have a position in place by the time of trial, and I decide that it is a constitutional right — and if you read the 11th Circuit decision, you probably don’t want to bet against that — the answer’s not going to be, oh, start working on this. If the state is not going to fix it, I will,” the federal judge admonished on March 26.

During a hearing Wednesday, Hinkle and lawyers representing both sides tested the federal court system’s video-conferencing platform, which the judge intends to use for the trial because of the novel coronavirus.

Members of the public will be able to listen to the hearing by telephone. Hinkle said people who want to watch the trial may contact the federal court in Tallahassee, where they will be allowed to watch a video of the proceedings from one of the courtrooms.

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Republished with permission from the News Service of Florida.

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

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